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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Michael Ienco, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-18-00734-PHX-JAT

ORDER 

 Pending before the Court is Plaintiff Michael Ienco’s (“Plaintiff”) appeal from the 

Social Security Commissioner’s (the “Commissioner”) denial of his application for a 

period of disability, disability insurance benefits, and Supplemental Security Income 

(“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq., 1381 

et seq. (Doc. 1 at 1). This matter has been fully briefed by the parties.1

 The Court now rules 

on Plaintiff’s appeal. 

I. BACKGROUND 

 The parties are familiar with the background information in this case, and it is 

summarized in the Administrative Law Judge’s (“ALJ”) decision. (See Doc. 9-9 at 38–56). 

Accordingly, the Court will reference the background only as necessary to the analysis 

below. 

 1

 (See Docs. 10–12). Counsel for Plaintiff failed to include their State Bar numbers 

on both Plaintiff’s Opening Brief (Doc. 10) and Reply (Doc. 12). All filings before the Court must comply with LRCiv 7.1(a)(1), which requires attorneys to include their State Bar numbers on the first page of each document. The Court strongly encourages Plaintiff’s counsel to review this District’s Local Rules of Practice to ensure that any future filings comply. 
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II. LEGAL STANDARD 

 The ALJ’s decision to deny disability benefits may be overturned “only when the 

ALJ’s findings are based on legal error or not supported by substantial evidence in the 

record.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). 

“‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance, 

i.e., such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Young 

v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 

 “The inquiry here is whether the record, read as a whole, yields such evidence as 

would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. 

Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). “Where evidence is 

susceptible of more than one rational interpretation, it is the ALJ’s conclusion which must 

be upheld; and in reaching his findings, the ALJ is entitled to draw inferences logically 

flowing from the evidence.” Id. (citations omitted); see Batson v. Comm’r of Soc. Sec. 

Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is because “[t]he trier of fact and not 

the reviewing court must resolve conflicts in the 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); see Benton, 331 F.3d at 1035 (“If the 

evidence can support either outcome, the Commissioner’s decision must be upheld.”).

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

credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 

Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports the 

ALJ’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 498, 501 (9th 

Cir. 1989). On the other hand, the Court “may not affirm simply by isolating a specific 

quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 

(internal quotations omitted). 

 Furthermore, the Court is not charged with reviewing the evidence and making its 

own judgment as to whether Plaintiff is or is not disabled. Rather, it is a “fundamental rule 
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of administrative law” that a reviewing court, in dealing with a judgement which an 

administrative agency alone is authorized to make, may only make its decision based upon 

evidence discussed by the agency. Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 

196 (1947). Thus, the Court’s inquiry is constrained to the reasons asserted by the ALJ and 

the evidence relied upon in support of those reasons. See Connett v. Barnhart, 340 F.3d 

871, 874 (9th Cir. 2003). Similarly, when challenging an ALJ’s decision, “issues which are 

not specifically and distinctly argued and raised in a party’s opening brief are waived.” 

Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (citing 

Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1110 n. 1 (9th Cir. 2000) (en banc), vacated and 

remanded on other grounds, 535 U.S. 391 (2002)); see also Bray v. Comm’r of Soc. Sec. 

Admin., 554 F.3d 1219, 1226 n. 7 (9th Cir. 2009) (applying the principle to Social Security 

appeals). Accordingly, the Court “will not manufacture arguments for an appellant.” Arpin, 

261 F.3d at 919 (citation omitted). 

A. Definition of a Disability 

 A claimant can qualify for Social Security disability benefits only if he can show 

that, among other things, he is disabled. 42 U.S.C. § 423(a)(1)(E). The Social Security Act 

defines “disability” as the “inability to engage in any substantial gainful activity by reason 

of any medically determinable physical or mental impairment which can be expected to 

result in death or which has lasted or can be expected to last for a continuous period of not 

less than 12 months.” Id. § 423(d)(1)(A). A person is disabled only if his “physical or 

mental impairment or impairments are of such severity that he is not only unable to do his 

previous work but cannot, considering his age, education, and work experience, engage in 

any other kind of substantial gainful work which exists in the national economy.” 

Id. § 423(d)(2)(A). 

B. The Five-Step Evaluation Process 

 The Social Security regulations set forth a five-step sequential process for 

evaluating disability claims. 20 C.F.R. § 404.1520(a)(4); see also Reddick v. Chater, 157 

F.3d 715, 721 (9th Cir. 1998). A finding of “not disabled” at any step in the sequential 
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process will end the inquiry. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of 

proof at the first four steps, but the burden shifts to the ALJ at the final step. Reddick, 157 

F.3d at 721. The five steps are as follows: 

 First, the ALJ determines whether the claimant is engaged in “substantial gainful 

activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. 

 At the second step, the ALJ next considers whether the claimant has a “severe 

medically determinable physical or mental impairment.” Id. § 404.1520(a)(4)(ii). If the 

claimant does not have a severe impairment, then the claimant is not disabled. 

Id. § 404.1520(c). A “severe impairment” is one that “significantly limits [the claimant’s] 

physical or mental ability to do basic work activities.” Id. Basic work activities are the 

“abilities and aptitudes to do most jobs,” such as lifting, carrying, reaching, understanding, 

carrying out and remembering simple instructions, responding appropriately to co-workers, 

and dealing with changes in routine.” Id. § 404.1521(b). Additionally, unless the 

claimant’s impairment is expected to result in death, “it must have lasted or must be 

expected to last for a continuous period of at least 12 months” for the claimant to be found 

disabled. Id. § 404.1509. 

 Third, having found a severe impairment, the ALJ then considers the severity of the 

claimant’s impairment. Id. § 404.1520(a)(4)(iii). This requires the ALJ to determine if the 

claimant’s impairment “meets or equals” one of the impairments listed in the regulations. 

Id. If so, then the ALJ will find that the claimant is disabled. Id. If the claimant’s 

impairment does not meet or equal a listed impairment, then the ALJ will assess the 

claimant’s “residual functional capacity based on all the relevant medical and other 

evidence in [the claimant’s] case record.” Id. § 404.1520(e). In assessing the claimant’s 

residual functional capacity (“RFC”), the ALJ will consider the claimant’s “impairment(s), 

and any related symptoms, such as pain, [that] may cause physical and mental limitations 

that affect what [the claimant] can do in a work setting.” Id. § 404.1545(a)(1). A claimant’s 

RFC is the most the claimant can still do despite the effects of all the claimant’s medically 

determinable impairments, including those that are not severe. Id. § 404.1545(a)(1–2). 
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 At step four, the ALJ determines whether, despite his impairments, the claimant can 

still perform “past relevant work.” Id. § 404.1520(a)(4)(iv). To do this, the ALJ compares 

the claimant’s residual function capacity with the physical and mental demands of the 

claimant’s past relevant work. Id. § 404.1520(f). If the claimant can still perform his past 

relevant work, the ALJ will find that the claimant is not disabled. Id. § 404.1520(a)(4)(iv). 

Otherwise, the ALJ proceeds to the final step. 

 At the fifth and final step, the ALJ considers whether the claimant “can make an 

adjustment to other work” that exists in the national economy. Id. § 404.1520(a)(4)(v). In 

making this determination, the ALJ considers the claimant’s RFC, age, education, and 

work experience. Id. § 404.1520(g)(1). If the ALJ finds that the claimant can make an 

adjustment to other work, then the claimant is not disabled. Id. § 404.1520(a)(4)(v).

However, if the ALJ finds that the claimant cannot make an adjustment to other work, then 

the claimant is disabled. Id. 

 In evaluating the claimant’s disability under this five-step process, the ALJ must 

consider all evidence in the case record. Id. § 404.1520(a)(3). This includes medical 

opinions, records, self-reported symptoms, and third-party reporting. See id. §§ 404.1527, 

404.1529. 

 C. The ALJ’s Evaluation under the Five Step Process 

 Prior to beginning the sequential evaluation process, ALJ Waters noted that 

Plaintiff’s case was before her on remand from the Ninth Circuit Court of Appeals. 

(Tr. 397).2

 Previously, on October 27, 2011, ALJ Tucevich had denied Plaintiff’s 

application for a period of disability and disability insurance benefits alleging disability 

beginning December 30, 2008. (Tr. 28, 397).3

 After the Appeals Council denied review on 

September 28, 2012, Plaintiff requested review by the District Court, which affirmed the 

Commissioner’s decision. (Tr. 397). Upon Plaintiff’s appeal, the Ninth Circuit reversed 

 2

 Citations to “Tr.” reference the certified administrative transcript of record located 

at Doc. 9. 

3

 Plaintiff protectively filed a Title II application for a period of disability and disability insurance benefits on March 29, 2010 alleging disability beginning December 30, 2008. (Tr. 19). 
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and remanded the District Court’s decision, ordering the ALJ to reconsider Plaintiff’s 

eligibility for disability benefits. (Id.); see Ienco v. Colvin, 627 F. App’x. 669, 670 (9th Cir. 

2015). Particularly, the Ninth Circuit directed the ALJ to make findings on remand as to 

Plaintiff’s ability to work in excess of 25 hours per week. (Id.). 

 While the claims above were pending, Plaintiff filed subsequent applications for 

Title II and Title XVI benefits on November 27, 2012. (Tr. 397, 521). These subsequent 

claims were denied initially and on reconsideration. (Tr. 397). Thereafter, Plaintiff filed a 

request for hearing, which was held on December 4, 2015. (Id.). Prior to a decision being 

issued, however, the Appeals Council remanded the earlier claim and directed ALJ Waters 

to consolidate Plaintiff’s subsequent claims filed on November 27, 2012 with the remanded 

claims. (Id.). After Plaintiff appeared and testified at a hearing on March 7, 2017, ALJ 

Waters issued an unfavorable decision on June 6, 2017. (Tr. 397, 415). 

 At step one of the sequential evaluation process, ALJ Waters found that Plaintiff 

had not engaged in substantial gainful activity since December 30, 2008, the alleged onset 

date. (Tr. 400). In step two, the ALJ ascertained that Plaintiff had one severe impairment—

schizoaffective disorder. (Id.). At this step, the ALJ also found that Plaintiff had non-severe 

impairments of diabetes, hyperlipidemia, a learning disability in reading, essential tremor, 

and hypothyroidism. (Id.). Under the third step, the ALJ determined that Plaintiff did not 

have an impairment or combination of impairments that meets or medically equals the 

severity of the impairments listed in the Social Security Regulations. (Tr. 401). Before 

moving on to step four, the ALJ conducted an RFC determination after consideration of 

the entire record. (Tr. 402). The ALJ found that Plaintiff had “the residual functional 

capacity to perform a full range of work at all exertional levels[.]” (Id.). However, the ALJ 

noted the following non-exertional limitations: “The claimant can perform simple routine 

and repetitive work tasks involving simple work related decisions and simple instructions 

with few changes in the work setting.” (Id.). The ALJ also determined that the “record does 

not support a finding of an inability to perform all work-related activity on a full time 

basis.” (Tr. 409). 
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At step four, the ALJ found that Plaintiff could perform past relevant work as a 

sandwich maker and industrial cleaner because this work did “not require the performance 

of work-related activities precluded by” Plaintiff’s RFC. (Tr. 413). Although the ALJ 

ascertained that Plaintiff was capable of performing past relevant work, the ALJ noted that 

there were also other jobs existing in significant numbers in the national economy that 

Plaintiff could perform, including kitchen helper and laboratory equipment cleaner. (Tr. 

414). Consequently, the ALJ did not proceed to the fifth and final step but, rather, 

concluded that Plaintiff had not been under a disability from December 30, 2008 through 

June 6, 2017, the date of the ALJ’s decision. (Tr. 415); see 20 C.F.R. § 404.1520(a)(4)(iv) 

(stating that if the claimant can still do his past relevant work, the ALJ will find that he is 

not disabled). 

III. ANALYIS 

 Plaintiff asserts that the ALJ’s denial of his application for Social Security Benefits 

and Supplemental Security Income (SSI) was not supported by substantial evidence and 

asks that the ALJ’s decision be reversed for an award of benefits. (Doc. 10 at 12, 24–25). 

Specifically, Plaintiff argues that: (1) the ALJ erred by failing to discuss whether Plaintiff’s 

mental impairments satisfy the paragraph “C” criteria for Listing 12.03; (2) the ALJ 

improperly evaluated the medical opinion evidence; (3) the ALJ improperly evaluated 

statements from other sources; and (4) the ALJ failed to properly consider all the record 

evidence. (See Doc. 10). However, for the reasons set forth below, the final decision of the 

Commissioner is affirmed. 

A. Whether the ALJ Erred in Determining that Plaintiff’s Mental 

Impairment Did Not Satisfy the Paragraph “C” Criteria for Listing 12.03 

Plaintiff argues that the ALJ erred by failing to discuss and make findings as to the 

Paragraph “C” criteria for Listing 12.03 at step three of the sequential evaluation process. 

(Id. at 21). In this step, the ALJ considers whether a claimant’s impairments meet or equal 

the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 

See 20 C.F.R. § 404.1520(a)(4)(iii). The impairments included in the Listings are 
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considered “severe enough to prevent an individual from doing any gainful activity, 

regardless of his or her age, education, or work experience.” 20 C.F.R. §§ 404.1525(a), 

416.925(a) (emphasis added). “For a claimant to show that his impairment matches a 

listing, it must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 

530 (1990). Likewise, to show that an unlisted impairment is “equivalent” to a listed 

impairment, the claimant “must present medical findings equal in severity to all the criteria 

for the one most similar listed impairment.” Id. at 531 (citation omitted). When analyzing 

a claimant’s mental impairments, including psychotic disorders, “[t]he required level of 

severity for these disorders is met when the requirements in both A and B are satisfied, or 

when the requirements in C are satisfied.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.03. 

Here, the ALJ determined that Plaintiff’s mental impairments did not meet Listings 

12.03 (Schizophrenic, Paranoid, and Other Psychotic Disorders, 12.04 (Depressive 

Disorders), or 12.06 (Anxiety Related Disorders) because Plaintiff did not meet the 

requisite “B” or “C” criteria. (Tr. 401–02). The ALJ first determined that Plaintiff did not 

meet the criteria for each of the listings under Paragraph B. (Tr. 401–02).4

 Then, the ALJ 

turned to Paragraph C. (Tr. 402). Paragraph C of Listing 12.03 requires: 

Medically documented history of a chronic schizophrenic, 

paranoid, or other psychotic disorder of at least 2 years’ 

duration that has caused more than a minimal limitation of 

ability to do basic work activities with symptoms or signs 

currently attenuated by medication or psychosocial support, 

and one of the following: 

(1) Repeated episodes of decompensation, each of 

extended duration; or 

(2) A residual disease process that has resulted in such 

marginal adjustment that even a minimal increase in mental 

demands or change in the environment would be predicted to 

cause the individual to decompensate; or 

 4

 After finding that Plaintiff did not meet the Paragraph B requirements, there was no need for the ALJ to review the impairments under Paragraph A. See Stevens v. Colvin, No. 13-CV-02830-NJV, 2014 WL 7004813, at *4 (N.D. Cal. Dec. 10, 2014); see also 20 

C.F.R. Pt. 404, Subpt. P, App. 1, § 12.03 (“The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied.”) (emphasis added). Plaintiff does not challenge the ALJ’s findings as to the Paragraph B criteria. (See Doc. 10). 
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(3) Current history of 1 or more years’ inability to 

function outside a highly supportive living arrangement, with 

an indication of continued need for such an arrangement. 

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.03(C). 

 Although Plaintiff claims that the ALJ failed to discuss Listing 12.03(C), (Doc. 10 

at 21), the ALJ explicitly stated that she “considered whether the ‘paragraph C’ criteria are 

satisfied[,]” but determined that “the evidence fails to establish the presence of the 

‘paragraph C’ criteria.” (Tr. 402). Further, while Plaintiff asserts that the ALJ should have 

discussed the Paragraph C criteria in more detail, the ALJ was not required to do so. 

Although an ALJ is required to adequately explain the basis for his or her determination 

that an applicant’s impairments do not equal a listing, Marcia v. Sullivan, 900 F.2d 172, 

176 (9th Cir. 1990), an ALJ is not required to “state why a claimant failed to satisfy every 

different section of the listing impairments.” Gonzalez v. Sullivan, 914 F.2d 1197, 1201 

(9th Cir. 1990). Rather, “a well-developed discussion of the factual basis of a claimant’s 

impairments elsewhere in a hearing decision may, under certain circumstances, support an 

unexplained finding of no medical equivalence at step three.” Lilly v. Astrue, No. ED-CV 

12-00381-MLG, 2012 WL 4364267, at *2 (C.D. Cal. Sept. 24, 2012) (finding that the 

ALJ’s detailed review of the plaintiff’s medical evidence supported the ALJ’s step three 

finding and that the ALJ “did not err in failing to explain his finding that the [p]laintiff’s 

impairments were not medically equivalent to any listed impairments”) (citing 

Gonzalez, 914 F.2d at 1201) (finding an ALJ’s four-page summary of the record an 

adequate basis for the ALJ’s unexplained statement that the plaintiff’s impairments did not 

meet or equal any listing); see also Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011) 

(“There is no error when an ALJ fails to explain why an impairment does not [meet or] 

equal one of the listed impairments as long as the overall conclusion is supported by the 

record.”). 

In addition to devoting nearly two pages of her decision to a thorough discussion of 

the Listing analysis and the Paragraph B criteria, (see Tr. 401–02), the ALJ engaged in a 
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detailed discussion of the medical evidence and Plaintiff’s impairments elsewhere in the 

hearing decision, (see Tr. 402–13). The ALJ’s well-developed discussion of the factual 

basis of Plaintiff’s impairments demonstrates that the Paragraph C criteria are not met. 

Indeed, the evidence does not show that Plaintiff’s impairments have “caused more than a 

minimal limitation of ability to do basic work activities”—a necessary element required to 

meet the Paragraph C criteria of Listing 12.03—because Plaintiff has consistently worked 

at Subway for at least five and a half years. (Tr. 406). Moreover, “there is no evidence of 

signs or symptoms of psychosis in the record during the relevant time period[,]” Plaintiff 

“has never been hospitalized and treated for mental illness[,]” and Plaintiff lives 

independently from his parents in an apartment. (Tr. 409). Substantial evidence of record 

supports the ALJ’s finding that the Paragraph C criteria are not met. 

 Moreover, as the party claiming error, Plaintiff has the burden “to demonstrate not 

only the error, but also that it affected his ‘substantial rights,’ which is to say, not merely 

his procedural rights.” Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Here, 

Plaintiff has not met his burden of proving that he can meet all of Listing 12.03’s criteria. 

Accordingly, the Court finds that the ALJ did not err in determining that Plaintiff’s mental 

impairments did not satisfy the Paragraph C criteria for Listing 12.03. 

B. Whether the ALJ Improperly Evaluated the Medical Opinion Evidence 

 Plaintiff contends that the ALJ failed to reasonably evaluate the medical opinion 

evidence. (Doc. 10 at 12). Specifically, Plaintiff argues that the ALJ improperly rejected 

the treating and examining source opinions of Drs. Graff, Dy, and Novie, erroneously 

discounted portions of the examining source opinion of Dr. Krabbenhoft, and 

inappropriately assigned great and partial weight to the opinions of State agency 

Drs. Campbell and Lindsay, respectively. (Id. at 12–18). 

In social security cases, there are three types of medical opinions: “those from 

treating physicians, examining physicians, and non-examining physicians.” Valentine v. 

Comm’r, 574 F.3d 685, 692 (9th Cir. 2009) (citation omitted). “The medical opinion of a 

claimant’s treating physician is given ‘controlling weight’ so long as it ‘is well-supported 
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by medically acceptable clinical and laboratory diagnostic techniques and is not 

inconsistent with the other substantial evidence in [the claimant’s] case record.’” Trevizo 

v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)). ALJs 

generally give more weight to medical opinions from treating physicians “since these 

sources are likely to be the medical professionals most able to provide a detailed, 

longitudinal picture of [the claimant’s] medical impairment(s) and may bring a unique 

perspective to the medical evidence that cannot be obtained from the objective medical 

findings alone or from reports of individual examinations . . . .” 

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Thus, the opinion of a treating source is 

generally given more weight than the opinion of a doctor who does not treat the claimant. 

Lester, 81 F.3d at 830. Should the ALJ decide not to give the treating physician’s medical 

opinion controlling weight, the ALJ must weigh it according to factors such as the nature, 

extent, and length of the physician-patient relationship, the frequency of evaluations, 

whether the physician’s opinion is supported by and consistent with the record, and the 

specialization of the physician. Trevizo, 871 F.3d at 676; see 20 C.F.R. §§ 404.1527(c)(2), 

416.927(c)(2). 

 Although a “treating physician’s opinion is entitled to ‘substantial weight,’” Bray, 

554 F.3d at 1228 (citation omitted), it is “not binding on an ALJ with respect to the 

existence of an impairment or the ultimate determination of disability.” Batson, 359 F.3d 

at 1195. Rather, an ALJ may reject the uncontradicted opinion of a treating physician by 

stating “clear and convincing reasons that are supported by substantial evidence.” Ryan v. 

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). “If a treating 

or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may 

only reject it by providing specific and legitimate reasons that are supported by substantial 

evidence.” Id. (citation omitted).5

 Nevertheless, “[t]he ALJ need not accept the opinion of 

any physician, including a treating physician, if that opinion is brief, conclusory, and 

 5

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inadequately supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th 

Cir. 2002). 

Moreover, “[o]pinions of a nonexamining, testifying medical advisor may serve as 

substantial evidence when they are supported by other evidence in the record and are 

consistent with it.” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 

1999); see also Andrews, 53 F.3d at 1041 (“[W]hen it is an examining physician’s opinion 

that the ALJ has rejected in reliance on the testimony of a nonexamining advisor, reports 

of the nonexamining advisor need not be discounted and may serve as substantial evidence 

when they are supported by other evidence in the record and are consistent with it.”). 

 1. The Opinion of Dr. Graff 

 When evaluating Plaintiff’s impairments, the ALJ afforded no weight to the opinion 

of Sandra Graff, Ed. D., a consultative examiner whose opinion was contradicted by that 

of Dr. Novie. (Tr. 409). Although Plaintiff contends that the ALJ erred by rejecting 

Dr. Graff’s report and opinion, (Doc. 10 at 12–13), the Court finds that the ALJ provided 

“specific and legitimate reasons that are supported by substantial evidence” for assigning 

no weight to the opinion of Dr. Graff. Ryan, 528 F.3d at 1198. 

 First, the ALJ specified that she did not give any weight to Dr. Graff’s opinion 

because Dr. Graff examined Plaintiff in January 2002. (Tr. 409). As Plaintiff alleged 

disability beginning December 30, 2008, Dr. Graff’s consultative evaluation was 

performed more than six years outside of the period at issue. “Medical opinions that predate 

the alleged onset of disability are of limited relevance.” Carmickle v. Comm’r, Soc. Sec. 

Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (citing Fair v. Bowen, 749 F.2d 597, 600 (9th 

Cir. 1985)). Accordingly, the ALJ did not err in giving no weight to Dr. Graff’s opinion 

because Dr. Graff evaluated Plaintiff prior to his alleged onset date. 

 Second, the ALJ noted that Dr. Graff’s opinion that Plaintiff exhibited variable 

persistence conflicted with Dr. Novie’s examination findings from December 22, 2011 that 

Plaintiff had good persistence and frustration tolerance. (Tr. 409). Inconsistency between 

a physician’s opinion and other clinical findings is an appropriate factor to consider when 
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evaluating medical opinions. SSR 06-03P, 2006 WL 2329939, at * 4 (S.S.A. Aug. 9, 2006); 

see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding that the ALJ 

reasonably discounted the physician’s opinion because the medical records were 

inconsistent with the limitations the physician set forth in her opinion); 

20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent a medical opinion is with the 

record as a whole, the more weight [the ALJ] will give to that medical opinion.”). As 

Dr. Graff’s opinion contained limitations inconsistent with an examination from the 

relevant time frame, the ALJ reasonably discounted Dr. Graff’s opinion for this reason, as 

well.6

 Accordingly, the Court finds that the ALJ reasonably determined that Dr. Graff’s 

opinion was entitled to no weight and provided two specific and legitimate reasons for her 

assessment. (See Tr. 409–10).7

 

 2. Dr. Dy 

 Plaintiff argues that the ALJ erred in assigning no weight to the opinion of Dr. Sylvia 

Dy, one of Plaintiff’s treating physicians. (Doc. 10 at 14). Dr. Dy’s opinion, in its entirety, 

states: “I am recommending that Michael Ienco work no more than 25 hours per week. If 

you have any questions, please call Mr. Ienco’s Clinical Liason, Jenny [] at [].” (Tr. 348). 

The ALJ rejected this statement because it “is not supported by any evidence, clinical notes, 

or rationale[.]” (Tr. 411). Particularly, the ALJ noted that Plaintiff’s medical records from 

2008 to 2010 demonstrate that Plaintiff’s condition was “much improved and stable,” 

whereas records from 2012 through 2017 indicate that Plaintiff’s “limitations have not 

increased over time.” (Tr. 411–12). Further, the ALJ pointed out that Dr. Dy “did not 

 6

 Although Plaintiff claims that Dr. Graff’s opinion “supports the more severe limitations recommended by Drs. Dy and Novie,” (Doc. 10 at 13; see also Doc. 12 at 7), it 

remains that Dr. Graff’s opinion was formed more than six years prior to Plaintiff’s alleged onset date of December 30, 2008, (see Tr. 409). In addition to being “of limited relevance[,]” Carmickle, 533 F.3d at 1165, an opinion resulting from an evaluation prior to Plaintiff’s alleged onset date is “neither significant nor probative,” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). 

7

 In its decision remanding to the ALJ to reconsider Plaintiff’s eligibility for disability benefits, the Ninth Circuit found that ALJ Tucevich erred by giving “no reasons for rejecting the opinion of Dr. Graff[.]” Ienco, 627 Fed. App’x at 669. However, by providing two specific and legitimate reasons for rejecting Dr. Graff’s opinion, ALJ Waters rectified the error from ALJ Tucevich’s previous decision. 
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provide any explanation regarding her recommendation [that] the claimant work no more 

than 25 hours per week.” (Tr. 411). Not only did Plaintiff indicate at a May 20, 2009 visit 

with Dr. Dy that he was looking for full time work, (Tr. 253), but the objective medical 

findings indicate that Plaintiff was stable on his medications, symptom free, and had mostly 

unremarkable mental status examinations during the relevant period. (Tr. 247, 251, 254, 

1461). When evaluating conflicting medical opinions, “an ALJ need not accept a treating 

physician’s opinion that is conclusory and brief and unsupported by clinical findings.” 

Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (citing Matney v. Sullivan, 981 

F.2d 1016, 1019 (9th Cir. 1992)). Therefore, the ALJ did not err in discounting Dr. Dy’s 

conclusory, two-sentence opinion as it is inadequately supported by the medical evidence. 

 In explaining her rationale for discounting Dr. Dy’s opinion, the ALJ also noted 

that Plaintiff “has been described as asymptomatic,” has “successfully worked for years on 

a part time basis, and has maintained an active lifestyle outside of work.” (Tr. 411). Indeed, 

the record shows that Plaintiff may have even exceeded Dr. Dy’s 25-hour work limit, as he 

reported in January 2014 that he was working 26 to 30 hours per week. (Tr. 1482).8

 In 

addition to working part-time at Subway for many years, Plaintiff hangs out with his 

friends, engages in live action role-playing, goes to concerts, bowls, listens to music, gets 

around town on the bus, visits art museums, and lives independently in his own apartment. 

(Tr. 408, 411–12). Moreover, Plaintiff’s medical records from 2012 though 2017 

demonstrate that Plaintiff “has become more independent and able to perform work 

activities.” (Tr. 411–12). Significantly, an ALJ may discount opinion evidence when a 

physician assesses limitations that appear to be inconsistent with the claimant’s level of 

activity. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001); Morgan, 169 F.3d at 

600–02 (considering an inconsistency between a treating physician’s opinion and a 

claimant’s daily activities a specific and legitimate reason to discount the treating 

physician’s opinion). Here, the ALJ reasonably determined that Plaintiff’s ability to 

 8

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Subway” and works “between 4-5 days a week, between 4-8 hours each day.”)). 
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perform such a wide-range of daily activities in addition to working part-time undercut Dr. 

Dy’s opinion that Plaintiff should work no more than 25 hours per week. (Tr. 411–12). For 

these reasons, the Court finds that the ALJ did not err in affording no weight to Dr. Dy’s 

opinion.9

 In accordance with the Ninth Circuit’s directive that the ALJ “make findings 

regarding Ienco’s ability to work in excess of 25 hours per week[,]” Ienco, 627 Fed. App’x 

at 669, the ALJ noted that Plaintiff had never been hospitalized for treatment, there was no 

evidence of worsening symptoms, Plaintiff maintained a very active lifestyle with good 

mental health, and Plaintiff previously worked full time in the past for extended periods 

without any documented decompensation or increased limitations during those periods. 

(Tr. 412–13). Based on these findings, the ALJ found it “very difficult to avoid the 

conclusion that [Plaintiff] has no restriction in his ability to work full time other than a 

preference not to do so.” (Tr. 413).10 Ultimately, the ALJ determined that she was unable 

to assign more than minimal weight to Dr. Dy’s opinion for these reasons. As substantial 

evidence supports the ALJ’s assessment of Dr. Dy’s opinion, the Court upholds the ALJ’s 

 9

 The Ninth Circuit previously stated that the ALJ failed to give “specific and legitimate reasons” for discounting Dr. Dy’s opinion limiting Plaintiff to 25 hours per week. Ienco, 627 Fed. App’x at 669. According to the Ninth Circuit, the prior ALJ erred by rejecting Dr. Dy’s opinion because Dr. Dy “appear[ed] to have adopted the claimant’s subjective allegations and presented them as her own, which diminishes her overall 

credibility.” Id. Here, the ALJ heeded the Ninth Circuit’s remand order by providing different reasons for discounting Dr. Dy’s recommendation, all of which are “specific and legitimate.” (Tr. 411). 

10 Plaintiff argues that the ALJ’s finding that it is “very difficult to avoid the conclusion that [Plaintiff] has no restriction in his ability to work full time other than a 

preference not to do so[,]” (Tr. 413), is not supported by substantial evidence and is 

speculative, (Doc. 10 at 20). The Court disagrees. In her decision finding non-disability, the ALJ sets out in detail why she believes Plaintiff is capable of working a full-time job. (See Tr. 412–13). Additionally, ALJs are permitted to make reasonable inferences from 

evidence in the record. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (“In 

reaching his findings, the[administrative] law judge is entitled to draw inferences logically flowing from the evidence.”). Here, it was reasonable for the ALJ to infer that Plaintiff was 

capable of working full-time based upon the facts that he had worked full time in the past for extended periods without any documented decompensation or increased limitations during those periods, continued to work part time while maintaining a very active lifestyle with good mental health, and failed to present any evidence of worsening symptoms. (Tr. 412–13). 
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analysis.11

 3. Dr. Novie 

 Next, Plaintiff claims that the ALJ erred in giving little weight to Dr. Novie’s 

examining source opinions. (Doc. 10 at 15). After examining Plaintiff once in 2010 and 

once in 2015, Dr. Novie opined that Plaintiff could not work more than 25 hours per week. 

(Tr. 410). However, the ALJ provided multiple reasons, each supported by substantial 

evidence, for giving Dr. Novie’s opinion little weight. (Tr. 410–11). 

 First, the ALJ noted that Dr. Novie’s conclusion that Plaintiff was “limited in social 

ability and ability to adapt” was contradicted by Dr. Novie’s own clinical findings that 

Plaintiff’s schizoaffective disorder was “mild” and that Plaintiff’s level of psychosocial 

stressors were “mild.” (Tr. 410). Moreover, Dr. Novie found that Plaintiff “had good 

persistence and frustration tolerance,” and that his attention, concentration, and processing 

speed were “within average ranges.” (Id.). According to the ALJ, Dr. Novie’s “early 

conclusions about the claimant’s limitations were greatly exaggerated and seem to 

contradict what the doctor himself has recorded about the claimant’s behavior and 

demeanor.” (Tr. 411). Contradictions between a physician’s opinion and objective medical 

findings constitute a “specific and legitimate reason” for rejecting the opinion. See 

Valentine, 574 F.3d at 692–93 (holding that the ALJ sufficiently justified its rejection of a 

treating psychologist’s contradicted testimony because it conflicted with the psychologist’s 

own treatment notes); Tommasetti, 533 F.3d at 1041. Consequently, the ALJ reasonably 

determined that Dr. Novie’s objective medical findings did not support his opinion limiting 

Plaintiff to a 25-hour work week. 

 Second, the ALJ discounted Dr. Novie’s opinion because his finding that Plaintiff 

had social limitations contradicted the overall record, including Plaintiff’s work record 

indicating that he has sustained employment for many years, and testimony demonstrating 

 11 Although Plaintiff may interpret the evidence differently and prefer that the ALJ include a restriction to 25 hours in the RFC finding as set forth in Dr. Dy’s opinion, this does not establish error. “Where evidence is susceptible to more than one rational 

interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 

676, 679 (9th Cir. 2005) (citing Andrews, 53 F.3d at 1039–40). 
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that “he has worked in jobs having contact with the public, and can adjust to co-workers 

and work situations.” (Tr. 410). Because inconsistency between a physician’s findings and 

other evidence in the record is an appropriate factor to consider when evaluating medical 

opinions, 20 C.F.R. § 404.1527(c)(4); SSR 06-03P, 2006 WL 2329939, at * 4, the ALJ 

reasonably discounted Dr. Novie’s opinion for overstating Plaintiff’s functional 

limitations. 

 Third, the ALJ noted that Plaintiff’s daily activities—including his abilities to 

sustain employment, get ready for work, get to work on time, live on his own, manage his 

own medication, take the bus to work, prepare meals, hang out with friends, and play video 

games—undermined Dr. Novie’s assessment of Plaintiff’s functional limitations. (Tr. 410–

11). As an ALJ may discount opinion evidence when a physician assesses limitations 

inconsistent with the claimant’s level of activity, Rollins, 261 F.3d at 856; Morgan, 169 

F.3d at 600–02, the ALJ reasonably determined that Plaintiff’s ability to perform such a 

wide-range of daily activities undercut Dr. Novie’s opinion that Plaintiff could work no 

more than 25 hours per week. (Tr. 410–11). 

 Finally, the ALJ reasoned that the only reason given for Dr. Novie’s opinion that 

Plaintiff cannot work over 25 hours per week is that Dr. Novie fears Plaintiff might have a 

“psychotic break,” but yet “does not give any evidence to support this fear.” (Tr. 411). In 

fact, the ALJ reasoned that there was no evidence that Plaintiff had ever been hospitalized 

for mental health treatment, experienced episodes of decompensation, or become “more 

limited in his abilities to perform work activities and to socialize” because of his jobs. (Id.). 

Moreover, the ALJ indicated that Plaintiff previously worked over 25 hours per week for 

extended periods but yet none of Plaintiff’s treatment records showed any decompensation 

or increased limitations during those periods. (Tr. 412). Plaintiff challenges the ALJ’s 

reasoning regarding the lack of evidence substantiating Dr. Novie’s fears of a psychotic 

break, arguing that there is no requirement that a claimant “have a breakdown in order to 

justify a doctor’s cautionary opinion.” (Doc. 10 at 16). Nevertheless, the Court agrees with 

the Commissioner that this argument “misses the mark,” (Doc. 11 at 14), as an ALJ “need 
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not accept the opinion of a doctor if that opinion is . . . inadequately supported by clinical 

findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Tonapetyan, 

242 F.3d at 1149). For these reasons, the ALJ reasonably determined that no objective 

evidence supported Dr. Novie’s opinion that Plaintiff work 25 hours or less per week to 

avoid a psychotic break. 

 4. Dr. Krabbenhoft 

 The ALJ gave great weight to Dr. Krabbenhoft’s opinion that Plaintiff can carry out 

simple instructions, but discounted the remainder of Dr. Krabbenhoft’s opinions. (Tr. 410). 

Plaintiff does not contest the portion of Dr. Krabbenhoft’s opinion noting that Plaintiff can 

carry out simple tasks. (See Doc. 10 at 16–17; Doc. 12 at 9). Although Dr. Krabbenhoft 

rendered her opinion after interviewing Plaintiff and reviewing records spanning from 2010 

through 2012, (Tr. 1905), Plaintiff contends that the ALJ erroneously discounted the 

remainder of Dr. Krabbenhoft’s opinions because Dr. Krabbenhoft did not review the 

opinions of Drs. Dy, Novie, or Graff limiting Plaintiff’s work week to 25 hours. (Doc. 10 

at 16). Plaintiff bases this argument on the disclaimer set forth in Dr. Krabbenhoft’s 

opinion, which states: “This diagnosis is based on a one-session interview with claimant. 

If additional information comes available for review, my opinion may change.” (Doc. 10 

at 16 (citing Tr. 1907)). Based on this disclaimer, Plaintiff speculates that Dr. Krabbenhoft 

may have reached a different conclusion had she reviewed the recommendations that 

Plaintiff work for no more than 25 hours per week. (Id. at 17). Nevertheless, the Court 

agrees with the Commissioner that “[m]erely speculating that a physician’s opinion might 

change based on other evidence in the record does not demonstrate that the ALJ erred[.]” 

(Doc. 11 at 16). 

Here, the ALJ discounted the remainder of Dr. Krabbenhoft’s opinions—including 

that Plaintiff was “at risk for social hazards” and was “[e]xpected to struggle with 

remembering changes to routine”—because they were unclear, unpersuasive, and did “not 

provide a basis for finding the claimant any more limited than the RFC prescribed.” 
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(Tr. 410, 1909).12 Just as the ALJ noted when discussing Dr. Novie’s finding that Plaintiff 

had some social limitations, Plaintiff has consistently “worked in jobs having contact with 

the public, and he can adjust to co-workers and work situations.” (Tr. 410). Despite 

Plaintiff’s social limitations, the ALJ also points out that Plaintiff held his job at Subway 

for the past six years, and that he reported that he had friends with whom he played magic 

games and went to the movies, as well as friends at work. (Id.). As there is inconsistency 

between Dr. Krabbenhoft’s opinion that Plaintiff was “at risk for social hazards” and other 

evidence in the record, the ALJ did not err in discounting Dr. Krabbenhoft’s remaining 

opinions. See Green v. Berryhill, 731 F. App’x 596, 599 (9th Cir. 2018) (holding that 

inconsistency between a physician’s opinion and other evidence in the case record 

constituted a specific and legitimate reason to reject physician’s opinion). 

 5. Drs. Campbell and Lindsay 

 Plaintiff also claims that the ALJ erred in her assessment of the opinions of 

Drs. Campbell and Lindsay, two State agency physicians. (Doc. 10 at 17). The ALJ 

discounted the portions of these opinions suggesting that Plaintiff work in an environment 

that does not require good social skills and which has more than typical levels of 

supervision because they contradicted the evidence of Plaintiff’s work activity 

demonstrating that Plaintiff has worked at a job interacting with the public for many years, 

and has even helped to train others. (Tr. 409, 547, 558, 569, 583). As an ALJ may discount 

opinion evidence when a physician assesses limitations inconsistent with the claimant’s 

level of activity, Rollins, 261 F.3d at 856; Morgan, 169 F.3d at 600–02, the ALJ did not 

err in discounting portions of the opinions of Dr. Campbell and Dr. Lindsay on this basis. 

 Nevertheless, Plaintiff suggests that his ability to interact with others in a work 

setting cannot serve as a basis for discounting these opinions because his past work was 

part time rather than substantial gainful activity (SGA). (See Doc. 10 at 18). Plaintiff’s 

argument fails for two reasons, however. First, part-time work can qualify as substantial 

 12 The Commissioner mentions that although the ALJ gave little weight to Dr. Krabbenhoft’s opinion that Plaintiff might struggle to remember changes to his routine, she accounted for this observation “by including a limitation in Plaintiff’s RFC restricting him to few changes in the work setting.” (Doc. 11 at 16 (citing Tr. 402, 1909)). 
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gainful activity. Katz v. Sec’y of Health & Human Servs., 972 F.2d 290, 292 (9th Cir. 1992) 

(citing 20 C.F.R. § 404.1572(a) (“Your work may be substantial even if it is done on a parttime basis[.]”)).13 Second, the Social Security Regulations provide that any work a claimant 

has done during any period in which they allege they are disabled is relevant to determining 

whether an individual can engage in substantial gainful activity. See 20 C.F.R. §§ 

404.1571, 416.971 (“The work, without regard to legality, that you have done during any 

period in which you believe you are disabled may show that you are able to work at the 

substantial gainful activity level. If you are able to engage in substantial gainful activity, 

we will find that you are not disabled. . . . Even if the work you have done was not 

substantial gainful activity, it may show that you are able to do more work than you 

actually did.”) (emphasis added). Accordingly, the ALJ did not err in using Plaintiff’s past 

work activity to discount these portions of the opinions of Drs. Campbell and Lindsay. 

 Plaintiff also contends that the ALJ erred in weighing Dr. Campbell’s opinion 

because the “ALJ must base her decision on medical opinion, not amend the opinion to fit 

her own conclusion.” (Doc. 10 at 17). While it is true that an ALJ may not substitute her 

own medical judgment for that of a medical expert,14 Plaintiff provides no evidence that 

this was the case here. Therefore, the Court is unable to find that the ALJ erred on this 

basis. 

Plaintiff finally argues that the ALJ erred in weighing the opinions of Drs. Campbell 

and Lindsay because she gave great weight to Dr. Campbell’s opinion that Plaintiff could 

perform work consisting of simple tasks, but only gave partial weight to Dr. Lindsay’s 

same opinion. (Doc. 10 at 17). While it is true that the ALJ inexplicably gave more weight 

to Dr. Campbell’s opinion than to that of Dr. Lindsay, Plaintiff has not demonstrated how 

 13 The ALJ found that Plaintiff has not engaged in substantial gainful activity since December 30, 2008. (Tr. 400). However, this does not discount Plaintiff’s solid work 

history, as Plaintiff claims. (Doc. 10 at 18). 

14 See Tackett v. Apfel, 180 F.3d 1094, 1102–03 (9th Cir. 1999) (An ALJ may not substitute his own interpretation of the medical evidence for the opinion of medical professionals); Banks v. Barnhart, 434 F.Supp.2d 800, 805 (C.D. Cal. 2006) (“An ALJ 

cannot arbitrarily substitute his own judgment for competent medical opinion, and he must not succumb to the temptation to make his own independent medical findings.”) (internal 

marks, alterations and citations omitted). 
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the ALJ’s disparate analysis of these opinions affected the outcome in this case.15 Indeed, 

the Court finds that this error is harmless, as it “is inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). 

Regardless if the ALJ gave great weight or partial weight to the opinions of both 

Dr. Campbell and Dr. Lindsay that Plaintiff could perform work consisting of simple tasks, 

the ALJ would have still found that Plaintiff was not disabled. Substantial evidence 

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

ultimate conclusion.” Id. (citations omitted). The Court will not reverse the 

Commissioner’s decision for an error that is harmless. Burch, 400 F.3d at 679. 

C. Whether the ALJ Improperly Evaluated Statements from “Other 

Sources” 

 Plaintiff contends that the ALJ improperly evaluated the statements provided by a 

career counselor, by Plaintiff’s mother, and by Plaintiff’s manager at Subway. (Doc. 10 at 

18, 22). When an ALJ discounts the testimony of lay witnesses, “he [or she] must give 

reasons that are germane to each witness.” Valentine, 574 F.3d at 694; Molina, 674 F.3d at 

1111. 

1. Thomas Ross, the Career Counselor 

Thomas Ross, a career counselor, opined that Plaintiff “should not have a full time 

job or a job that is too stressful.” (Tr. 412, 1115). The ALJ gave this statement minimal 

weight because Mr. Ross failed to “cite any medical or treatment records to support his 

statement” nor provide any “support for the limitations he specifies.” (Tr. 412). Further, 

the ALJ discounted Mr. Ross’s statement because he failed to “define stress or what he 

considers a full time job.” (Id.). Finally, the ALJ pointed out that the portion of Mr. Ross’s 

statement that Plaintiff “has been in recovery for a little over two years,” (Tr. 1115), is 

unclear, and that Mr. Ross fails to explain his motivation for making the statement. 

 15 See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“[T]he party that ‘seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted.’”) (quoting Palmer v. Hoffman, 318 U.S. 109, 116 (1943)); Brown 

v. Comm’r of Soc. Sec., 532 F. App’x 688, 689 (9th Cir. 2013) (affirming the Commissioner’s decision because the plaintiff “failed to carry her burden to show that [an] 

error was harmful.”) (citing Shinseki, 556 U.S. at 409; Molina, 674 F.3d at 1115–22)). 
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(Tr. 412). As the ALJ listed germane reasons for discounting Mr. Ross’s statement, 

Valentine, 574 F.3d at 694, the Court is unable to find that the ALJ erred in rejecting his 

statement. 

2. Mary Ann Ienco, Plaintiff’s Mother 

The ALJ also considered the two third party statements and hearing testimony of 

Mary Ann Ienco, Plaintiff’s mother, and found that “her description of the claimant’s 

behavior requires no greater limitations than those given in the RFC.” (Tr. 413). Although 

Plaintiff contends that Mary Ann Ienco’s “testimony of a dangerous lack of social skills, 

impulsiveness, etc., is clearly not covered by the cursory statement of the ALJ that her 

testimony is contained within the RFC adopted,” the Court disagrees. (Doc. 10 at 22). First, 

Mary Ann Ienco never testified that her son has a “dangerous lack of social skills,” as 

Plaintiff claims. In fact, she states that Plaintiff “has some friends” but “not a lot of friends,” 

and has a couple of “good friends.” (Tr. 477). When asked by the ALJ if she had any 

concerns about his safety, Mary Ann Ienco replied that she did because Plaintiff is “more 

naïve I think than most people.” (Tr. 478). However, just because Mary Ann Ienco believes 

her son is naïve and “very trusting” does not demonstrate that Plaintiff has a “dangerous 

lack of social skills.” (Id.). 

Second, while the ALJ may not have given specific reasons for rejecting Mary Ann 

Ienco’s lay witness testimony, Plaintiff has not met his burden of showing that this error 

was harmful. See Shinseki, 556 U.S. at 409; Brown, 532 F. App’x at 689. As the 

Commissioner points out, “the ALJ properly discounted similar statements about 

Plaintiff’s social limitations and determined that they were inconsistent with Plaintiff’s 

long history of interacting with coworkers, supervisors, and the public at his part-time job.” 

(Doc. 11 at 19 (citing Tr. 409)). Veritably, the ALJ’s error was harmless because the ALJ 

validly rejected the social limitations described by Mary Ann Ienco when discussing the 

physician opinion evidence. (See Tr. 409–10); Molina, 674 F.3d at 1122 (“Because the ALJ 

had validly rejected all the limitations described by the lay witnesses in discussing Molina’s 

testimony, we are confident that the ALJ’s failure to give specific witness-by-witness 
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reasons for rejecting the lay testimony did not alter the ultimate nondisability 

determination. Accordingly, the ALJ’s error was harmless.”). Therefore, the Court will not 

reverse on this basis. Burch, 400 F.3d at 679. 

3. Ryan Briggs, Plaintiff’s Manager at Subway 

Plaintiff contends that the ALJ erred by omitting the statement made by Ryan 

Briggs, Plaintiff’s manager at Subway for over 5 and a half years. (Doc. 10 at 22). 

Mr. Briggs stated that Plaintiff is “on a 20-hour schedule because when he works longer 

than that he becomes easily agitated, confused, and stressed out.” (Tr. 241). Mr. Briggs 

also indicated that Subway “would not hire him full time due to his mental health 

condition.” (Id.). Here, the ALJ erred by failing to consider and comment upon Mr. Briggs’ 

lay witness testimony. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th 

Cir. 2006) (“In determining whether a claimant is disabled, an ALJ must consider lay 

witness testimony concerning a claimant’s ability to work.”) (citing Dodrill v. Shalala, 12 

F.3d 915, 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e)). 

According to Plaintiff, this error was harmful because “[t]he statement of Plaintiff’s 

decompensating with longer hours by an employer with a long familiarity, and his 

statement that Plaintiff would not be hired full time[,] adds a vocational and real life 

opinion to the case and is crucial evidence.” (Doc. 10 at 22). 

Conceding that the ALJ erred by silently disregarding Mr. Briggs’ lay testimony, 

the Commissioner avers that the ALJ’s error was harmless. The Court agrees, as the Court 

“can confidently conclude that no reasonable ALJ, when fully crediting the testimony, 

could have reached a different disability determination.” Stout, 454 F.3d at 1056. First, 

Mr. Briggs’ statement that Plaintiff’s work week is limited to 20 hours appears to be untrue, 

as Plaintiff testified that he occasionally worked 24 to 25 hours per week, (Tr. 459), and 

reported to medical professionals that he was working over 20 hours. (Tr. 1482 (indicating 

that Plaintiff was working 26 to 30 hours per week); Tr. 1240 (indicating that Plaintiff 

“works 22 to 27 hours a week at Subway” and works “between 4-5 days a week, between 

4-8 hours each day.”)). Furthermore, Mr. Briggs provides no examples of situations where 
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Plaintiff allegedly became “agitated, confused, and stressed out” from working more than 

20 hours per week; rather, Mr. Briggs’ sweeping statement is devoid of evidence. 

Moreover, Mr. Briggs’ statement is duplicative of the opinion evidence indicating 

that Plaintiff should work no more than 25 hours, which the ALJ reasonably discounted. 

(Tr. 410–13). An ALJ’s error in failing to consider lay witness testimony is harmless 

“where the testimony is similar to other testimony that the ALJ validly discounted, or where 

the testimony is contradicted by more reliable medical evidence that the ALJ credited.” 

Molina, 674 F.3d at 1119. Further, “an ALJ’s failure to comment upon lay witness 

testimony is harmless where ‘the same evidence that the ALJ referred to in discrediting 

[the claimant’s] claims also discredits [the lay witness’s] claims.’” Molina, 674 F.3d at 

1122 (quoting Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 2011)). Here, the reasons and 

evidence which the ALJ set forth for assigning no more than minimal weight to the 

opinions that Plaintiff should work no more than 25 hours per week “apply equally well” 

to the letter submitted by Mr. Briggs. Id. at 1117. The ALJ noted that there was no evidence 

that Plaintiff had ever been hospitalized for mental health treatment, experienced episodes 

of decompensation, or become “more limited in his abilities to perform work activities and 

to socialize” because of work. (Tr. 411). Moreover, the ALJ indicated that Plaintiff 

previously worked over 25 hours per week for extended periods, but yet none of Plaintiff’s 

treatment records showed any decompensation or increased limitations during those 

periods. (Tr. 412). These facts contradict Mr. Briggs’ letter just as they contradict the 

opinions of Drs. Novie and Dy. (Tr. 410–13). Therefore, because the ALJ properly 

discounted the opinions of Dr. Dy and Dr. Novie that Plaintiff be capped at 25 hours per 

week, and because those opinions describe essentially the same limitations claimed by 

Mr. Briggs, the ALJ’s failure to comment on Mr. Brigg’s statement is harmless error. See 

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 893 (9th Cir. 2006) (finding that the ALJ’s 

failure to consider a lay witness’ testimony was harmless because that lay witness “spoke 

to no limitations not already accounted for by the ALJ.”). 

Furthermore, even if Mr. Briggs’ statement is credited, substantial evidence 
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supports the ALJ’s non-disability determination. See Graham v. Comm’r of Social Sec., 

441 Fed. App’x. 487, 489 (9th Cir. 2011) (finding that the ALJ’s failure to comment upon 

lay witness testimony was harmless because even if it were fully credited, “there was other 

significant evidence that supported the ALJ’s nondisability determination”). Plaintiff’s 

ability to perform a wide range of daily activities and work part-time without experiencing 

any negative change in his mental capabilities nor any episodes of decompensation 

demonstrates that Plaintiff has no restriction in his ability to work full time other than a 

preference not to do so. (Tr. 411–13). Mr. Briggs’ lay witness testimony, when viewed in 

conjunction with the evidence the ALJ properly considered, does not undermine the ALJ’s 

finding that Plaintiff is not disabled. Accordingly, the ALJ’s failure to comment properly 

on the lay testimony is harmless error, as the ALJ would not have changed her RFC 

determination based upon Mr. Briggs’ statement. 

D. Whether the ALJ Failed to Properly Consider All the Record Evidence 

 Plaintiff contends that the ALJ failed to properly consider all of the record evidence, 

including Plaintiff’s driving record, GAF scores, a “seriously mentally ill” (SMI) finding 

by the Arizona Department of Health Services, and medical records documenting negative 

symptoms. (Doc. 10 at 18–21). For the reasons set forth below, however, the Court finds 

that the ALJ properly weighed this evidence. 

 First, Plaintiff claims that the ALJ erred by giving no weight to Plaintiff’s driving 

record from 1994. (Doc. 10 at 18–19). According to Plaintiff, this record “is evidence of a 

life long dysfunction and supports the opinions of Drs. Dy and Novie,” who reported that 

Plaintiff had “a dozen car accidents over the years[.]” (Id. at 19). Nevertheless, the ALJ 

discussed Plaintiff’s remote driver’s training records in her opinion, and reasonably 

determined that they were of limited relevance to the disability determination because they 

“concern a matter that was completed in 1994 which is more than ten years before the 

period in issue.” (Tr. 412). As this evidence predating the alleged onset of disability by 

fourteen years is of limited relevance, Carmickle, 533 F.3d at 1165 (citing Fair, 749 F.2d 

at 600), the ALJ did not err in discounting Plaintiff’s driving record. Moreover, Plaintiff 
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has failed to demonstrate that this evidence undermines the ALJ’s non-disability finding, 

and even concedes that the ALJ’s rejection of this record “is not a major issue.” (Doc. 10 

at 18). 

 Second, Plaintiff argues that the ALJ erred in assigning minimal weight to his global 

assessment of functioning (GAF) scores. (Doc. 10 at 19). In doing so, the ALJ noted that 

“GAF scores only reflect the claimant’s functioning during a very limited and isolated 

period of time” and “do not reflect the claimant’s limitations over a long period of time.” 

(Tr. 412). Plaintiff argues that the ALJ’s reasoning for discrediting the GAF scores is 

“flawed” because GAF scores “were accepted by the medical community and entered by 

Plaintiff’s treating providers.” (Doc. 10 at 19).16 Nevertheless, the Social Security 

Administration has determined that the GAF scale “does not have a direct correlation to 

the severity requirements in [the Social Security Administration’s] mental disorders 

listings.” McFarland v. Astrue, 288 F. App’x 357, 359 (9th Cir. 2008) (citing 65 Fed. Reg. 

50, 746, 50, 765 (Aug. 21, 2000)). Moreover, “an ALJ is not required to give controlling 

weight to a treating physician’s GAF score; indeed, an ALJ’s failure to mention a GAF 

score does not render his assessment of a claimant’s RFC deficient.” Chavez v. Astrue, 699 

F. Supp. 2d 1125, 1135 (C.D. Cal. 2009) (citations omitted); see also Pinegar v. Comm’r 

of Soc. Sec. Admin., 499 F. App’x 666, 667 (9th Cir. 2012) (“Regarding [plaintiff’s] Global 

Assessment of Functioning scores, the Commissioner has stated that such scores do not 

directly correlate with the requirements of Listing 12.04 for a finding of disability, and this 

Court has not found error when an ALJ does not consider them. . . . Therefore, the ALJ did 

not err by not considering [plaintiff’s] Global Assessment of Functioning scores.”) 

 16 Plaintiff also urges the Court to consider Nelson v. Berryhill from the District of 

New Mexico. (Doc. 10 at 20 n.8 (citing Nelson v. Berryhill, No. CV 17-0516 MV/JHR, 

2018 WL 2455919, at *4 (D.N.M. June 1, 2018), report and recommendation adopted, No. 

CV 17-0516 MV/JHR, 2018 WL 3209405 (D.N.M. June 29, 2018)). Not only is this case not binding precedent, but it is distinguishable because the Magistrate Judge there found that the reasons provided by the ALJ for rejecting the GAF score were unsupported. Nelson

at *5. This is not the case here. Further, even if the Court were to find that the ALJ erred 

in assigning minimal weight to Plaintiff’s GAF scores—which it does not—Plaintiff has 

not shown that this error warrants reversal because he has not satisfied his burden of 

establishing harm. See Molina, 674 F.3d at 1111 (court may not reverse unless error is harmful, and claimant has burden of showing harm). 
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(internal citations omitted); Baker v. Astrue, No. CV08-3199-MLG, 2009 WL 279085, at 

*3–4 (C.D. Cal. Feb. 4, 2009) (holding that the ALJ did not err in failing to mention the 

claimant’s GAF scores because while “a GAF score may help guide the ALJ’s 

determination,” an ALJ “is not bound to consider it.”). Here, the ALJ considered Plaintiff’s 

GAF scores, but reasonably determined that they were entitled to minimal weight. 

(Tr. 412). The ALJ did not err in doing so. 

 Third, Plaintiff claims that the ALJ erred in rejecting the SMI finding by the Arizona 

Department of Health Services. (Doc. 10 at 20–21). The ALJ acknowledged that Plaintiff 

“has been found eligible to receive services as a seriously mentally ill (SMI) individual in 

Arizona,” but gave this determination “minimal weight” because the criteria to establish 

eligibility as a SMI are inconsistent with the criteria used to determine eligibility for 

disability benefits. (Tr. 413). Although Plaintiff acknowledges that the State of Arizona 

applies a different standard for determining eligibility for services as a SMI, Plaintiff 

argues that the “Ninth Circuit requires ALJs to consider the determinations of other 

agencies whose standards by definition are somewhat different from Social Security.” 

(Doc. 10 at 20).17

Findings of disability by other state or federal agencies “do[ ] not necessarily compel 

the SSA to reach an identical result.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th 

Cir. 2002) (citing 20 C.F.R. § 404.1504 (2002)). Disability determinations by other 

government agencies are not binding on the Commissioner. 20 C.F.R. §§ 404.1504, 

 17 In support, Plaintiff erroneously attributes the following quote to McCarty v. 

Massanari, 298 F.3d 1072, 1075 (9th Cir. 2002): “[F]indings of disability by other federal agencies . . . are entitled to some weight and must be considered in the ALJ’s decision.” (See Doc. 10 at 21). However, this quote is from Morrison v. Apfel, 146 F.3d 625, 628 (8th 

Cir. 1998), and was quoted by the Ninth Circuit in support of its proposition that “the nine circuits that have considered this issue agree that a VA disability rating is entitled to evidentiary weight in a Social Security hearing[,]” McCarty, 298 F.3d at 1075. The 

McCarty case deals with the question of how much weight an ALJ should give to another federal agency’s finding of disability, and holds that an ALJ must consider the VA’s 

finding in reaching his decision. Id. at 1075–76. Here, however, Plaintiff is arguing that the ALJ erred in rejecting the state of Arizona’s SMI determination, even though the ALJ considered the state’s finding in reaching her decision. (See Tr. 413). Moreover, while 

Plaintiff cites the Social Security regulations for support for the proposition that ALJs must evaluate and weigh every medical opinion in the record, (Doc. 10 at 21 (citing 20 C.F.R. § 416.927(c)), the ALJ here did evaluate this evidence and assigned it minimal weight, (Tr. 413). 
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416.904.18 “A state finding of disability may be introduced into evidence before the 

Secretary, but the Secretary may attribute as much or as little weight to it as the Secretary 

deems appropriate.” Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1990), overruled in 

part on other grounds by Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (citing Wilson 

v. Heckler, 761 F.2d 1383, 1385 (9th Cir. 1985)). However, an ALJ is obligated to consider

the findings of other agencies in reaching her decision. McCartey, 298 F.3d at 1076.19 The 

weight an ALJ is required to give to these other findings of disability, however, depends 

on whether the agency disability program has “marked similarit[ies]” to the SSA disability 

program. Id. One important factor in this analysis is the level of similarity between the two 

programs’ “criteria for determining disability.” Id.

As required, the ALJ considered the State of Arizona’s SMI determination in 

reaching her decision, and determined the criteria used by the SSA and the State of Arizona 

were too divergent to provide significant probative value for SSA purposes. (Tr. 413). 

Accordingly, the ALJ did not err in giving little weight to the SMI determination, as the 

“ultimate responsibility for determining whether an individual is disabled under Social 

Security law rests with the Commissioner.” Mowery v. Comm’r of Soc. Sec. Admin., No. 

CV-13-02325-PHX-ESW, 2015 WL 505661, at *10 (D. Ariz. Feb. 6, 2015) (holding that 

the ALJ did not err in assigning minimal weight to Magellan of Arizona’s determination 

that Plaintiff has a qualifying mental illness entitling Plaintiff to SMI benefits because 

 18 These sections of the Social Security Regulations provide: 

A decision by . . . any other governmental agency about whether you are disabled . . . is based on its rules and is not our 

decision about whether you are disabled . . . . We must make a 

disability . . . determination based on social security law. Therefore, a determination made by another agency that you are disabled . . . is not binding on us. 

20 C.F.R. §§ 404.1504, 416.904. 

19 But see 20 C.F.R. § 404.1504 (2017) (amending the code section to state that the 

SSA “will not provide any analysis in our determination or decision about a decision made 

by any other governmental agency or a nongovernmental entity about whether [a claimant 

is] disabled, blind, employable, or entitled to any benefits”). Because this amendment to 

the Social Security Regulations applies to claims brought after March 27, 2017, it does not 

apply to this case. 
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“qualification for SMI benefits is a determination distinct to Magellan” and has “‘limited 

probative value’ as to whether Plaintiff is disabled pursuant to the Social Security Act.”); 

see also Bates, 894 F.2d at 1063 (“Both the Social Security regulations and our decisions 

establish that the Secretary is not bound by a state agency determination of disability. The 

State of Washington’s determination that Bates is ‘temporarily totally disabled’ is not 

binding on the Secretary. Bates’ argument that the Secretary erred in failing to give weight 

to this determination is thus without merit.”); Little v. Richardson, 471 F.2d 715, 716 (9th 

Cir. 1972) (State determination of disability was not binding in proceedings on application 

for Social Security disability benefits). 

 Finally, Plaintiff contends that the ALJ failed to properly consider medical records 

documenting negative symptoms, which Plaintiff believes show that he is not in good 

health and is unable to work full time. (Doc. 10 at 23–24). Particularly, Plaintiff takes error 

with the ALJ’s statement that: “It is not clear why treating and examining mental health 

providers would recommend he work no more than 25 hours per week given how he has 

maintained a very active lifestyle with apparent good mental health.” (Id. at 23 (citing 

Tr. 412–13)). Although the record admittedly contains a combination of both positive and 

negative objective findings, Plaintiff’s reliance on these negative examination findings is 

misplaced.20 “[T]he ALJ is the final arbiter with respect to resolving ambiguities in the 

medical evidence,” Tommasetti, 533 F.3d at 1041, and reasonably determined that the 

objective findings did not support a finding of disability here, (see Tr. 397–415). See also 

Burch, 400 F.3d at 679 (“Where evidence is susceptible to more than one rational 

interpretation, it is the ALJ’s conclusion that must be upheld.”). Moreover, even if 

substantial evidence supports Plaintiff’s interpretation of the evidence, this does not 

establish error. Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997) (“[T]he key 

 20 Plaintiff argues that the ALJ errs in relying on records showing that Plaintiff was improved, stable, and symptom free as support for her finding that Plaintiff is capable of working full-time because all of these records “were entered in the context of the 25 hour 

regimen.” (Doc. 10 at 23). According to Plaintiff, “he is asymptomatic while he complies with Dr. Dy’s and Dr. Novies’ restrictions.” (Doc. 12 at 5). Nevertheless, it remains that 

Plaintiff was also asymptomatic when working more than 25 hours per week. (See Tr. 412 

(“[Plaintiff] worked full time in the past for extended time periods and treatment records do not document decompensation or increased limitations during those periods.”)). 
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question is not whether there is substantial evidence that could support a finding of 

disability, but whether there is substantial evidence to support the Commissioner’s actual 

finding that claimant is not disabled.”). As substantial evidence supports the ALJ’s findings 

that Plaintiff can work full time, the Court will affirm. 

IV. CONCLUSION 

 For the reasons stated above, 

IT IS ORDERED that the final decision of the Commissioner of Social Security is 

AFFIRMED. 

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 

accordingly and terminate this case. 

 Dated this 20th day of March, 2019.