# Dawisha-Sexton v. Commissioner Social Security Administration

> District Court, D. Oregon · June 27, 2025

URL: https://www.frixlaw.com/law-library/cases/11085771

## Case

- **Court:** District Court, D. Oregon
- **Decided:** June 27, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11085771

## How later opinions describe it (automated extraction)

- finding an ALJ may consider inconsistencies between plaintiff’s testimony and his conduct
- affirming the ALJ's opinion discounting the claimant’s testimony because the ALJ “provided at least one clear and convincing reason supported by substantial evidence for rejecting [the] testimony as not credible”
- holding inconsistency can be based on objective medical evidence

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION

JACOB D.,1 Case No. 6:24-cv-01191-HL

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,

Defendant.

_________________________________________
HALLMAN, United States Magistrate Judge:

Plaintiff Jacob D. brings this action under the Social Security Act (the “Act”), 42 U.S.C.
§ 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security
(“Commissioner”). The Commissioner denied plaintiff’s applications for Disability Insurance
Benefits (“DIB”) and Social Security Income (“SSI”) under Titles II and XVI of the Act. 42
U.S.C. § 401 et seq. For the following reasons, the decision of the Commissioner is AFFIRMED.

1 In the interest of privacy, this Opinion uses only the first name and the initial of the last name
for non-governmental parties and their immediate family members.
STANDARD OF REVIEW
42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration’s
disability determinations: “The court shall have power to enter . . . a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.” The court must affirm the Commissioner’s decision if it is

based on proper legal standards and the findings are supported by substantial evidence in the
record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation
omitted). The court must weigh “both the evidence that supports and detracts from the
[Commissioner’s] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where
the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its]
judgment for the ALJ’s.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
omitted); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (holding that the court
“must uphold the ALJ’s decision where the evidence is susceptible to more than one rational

interpretation”). “[A] reviewing court must consider the entire record as a whole and may not
affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d
625, 630 (9th Cir. 2007) (quotation omitted).
BACKGROUND
I. Plaintiff’s Application
Plaintiff alleges disability based on depressive disorder, possible autism, post-traumatic
stress disorder (“PTSD”), attention-deficit hyperactivity disorder, dissociative identity disorder,
and nonverbal sometimes. Tr. 309.2 At the time of plaintiff’s alleged onset date, he was 23 years
old. Tr. 24.3 He has an eleventh-grade education and has past relevant work experience as a
cashier, commercial cleaner, survey worker, and reservation clerk. Tr. 24, 310.
Plaintiff protectively applied for DIB and SSI in November 2020. Tr. 316-18. His

applications were denied initially on August 2, 2021, and on reconsideration on June 1, 2022. Tr.
64-65, 75-76, 125-26, 149-50. Plaintiff subsequently requested a hearing, which was held on
August 18, 2023, before Administrative Law Judge (“ALJ”) Katherine Weatherly. Tr. 32.
Plaintiff appeared and testified at the hearing, represented by his counsel Mark Manning. Tr. 34.
A vocational expert (“VE”), Michelle Bishop, also testified. Tr. Id. On October 19, 2023, the
ALJ issued a decision denying plaintiff’s claims. Tr. 32. Plaintiff requested Appeals Council
review, which was denied on June May 23, 2024. Tr. 1-3. Plaintiff then sought review before this
Court.4
II. Sequential Disability Process
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must

demonstrate an “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected . . . to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

2 Citations to “Tr.” are to the Administrative Record. (ECF 8).
3 Plaintiff initially identified January 1st, 2008, as the alleged onset date but later amended the
alleged onset of disability to January 1, 2019. Tr. 289.
4 The parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. §
636. (ECF 5).
The Commissioner has established a five-step process for determining whether a person
is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At
step one, the Commissioner determines whether a claimant is engaged in “substantial gainful
activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b),

416.920(b).
At step two, the Commissioner determines whether the claimant has a “medically severe
impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§
404.1520(c), 416.920(c). A severe impairment is one “which significantly limits [the claimant’s]
physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) & 416.920(c).
If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.
At step three, the Commissioner determines whether the impairments meet or equal “one
of a number of listed impairments that the [Commissioner] acknowledges are so severe as to
preclude substantial gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the
claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at

141. At this point, the Commissioner must evaluate medical and other relevant evidence to
determine the claimant’s “residual functional capacity” (“RFC”), an assessment of work-related
activities the claimant may still perform on a regular and continuing basis, despite any
limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c).
At step four, the Commissioner determines whether the claimant can perform “past
relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the
Commissioner. Yuckert, 482 U.S. at 146 n. 5.
Finally, at step five, the Commissioner must establish that the claimant can perform other
work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§
404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not
disabled. 20 C.F.R. §§ 404.1566, 416.966.

III. The ALJ’s Decision
At step one, the ALJ determined plaintiff had not engaged in substantial gainful activity
since his alleged onset date of January 1, 2019. Tr. 19.
At step two, the ALJ determined plaintiff has the following severe impairments: “autism
spectrum disorder (without intellectual or language impairment); PTSD; bipolar II disorder;
borderline personality disorder; and rule out dissociative disorder.” Tr. 19.
At step three, the ALJ determined plaintiff’s impairments did not meet or medically equal
the severity of a listed impairment. Tr. 20. The ALJ then resolved that plaintiff had the residual
function capacity (“RFC”) to:
perform a full range of work at all exertional levels but with the following non-
exertional limitations: he can persist at simple, routine, repetitive tasks involving
simple work-related decision and changes. He cannot tolerate fast-paced production
work. He can tolerate occasional interaction with co-workers and supervisors. He
cannot tolerate interaction with the public.

Tr. 21
At step four, the ALJ found plaintiff could not perform his past relevant work. Tr. 24.
But at step five—considering plaintiff’s age, education, work experience, and RFC—the
ALJ found a significant number of jobs existed in the national economy that plaintiff could
perform, including work as a routing clerk, marker, and waxer cleaner. Tr. 24-25. Thus, the ALJ
concluded that plaintiff is not disabled. Tr. 25-26.
DISCUSSION
Plaintiff argues the ALJ committed three harmful errors. Pl. Br. at 2. He contends the
ALJ erred by (1) discounting his subjective symptom testimony without a clear and convincing
reason for doing so, (2) rejecting third-party witness testimony without a germane reason, and (3)

improperly evaluating the medical opinions of Walter Rosenthal, QMHP, and Scott Alvord,
PsyD. Id. For the following reasons, the Court finds the ALJ did not err, and affirms.
I. Symptom Testimony
Plaintiff asserts the ALJ improperly rejected his subjective symptom testimony. Pl. Br. at
11-16. This Court disagrees.
A. Legal Standards
The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL
5180304, at *1 (Oct. 25, 2017). There is a two-step process for evaluating a claimant’s testimony
about the severity and limiting effect of his symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th
Cir. 2009). First, the claimant must produce objective medical evidence of one or more

impairments that could reasonably be expected to produce some degree of symptoms.
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The claimant need not show the
impairment could reasonably be expected to cause the severity of the symptoms, but only show it
could reasonably have caused some degree of the symptoms. Id.
Second, the ALJ must assess the claimant’s testimony regarding the severity of the
symptoms. Id. The ALJ can reject the claimant’s testimony “only by offering specific, clear and
convincing reasons for doing so.” Id. Thus, the ALJ must specifically identify the testimony they
discredit and explain what evidence undermines the testimony. Holohan v. Massanari, 246 F.3d
1195, 1208 (9th Cir. 2001). In other words, the “clear and convincing” standard requires an ALJ
to “show [their] work.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).
General findings are insufficient to support an adverse determination; the ALJ must rely
on substantial evidence. Holohan, 246 F.3d at 1208. To discredit a plaintiff’s testimony

regarding the degree of impairment, the ALJ must make a “determination with findings
sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit
claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The question is
not whether ALJ’s rationale convinces the court, but whether their rationale “is clear enough that
it has the power to convince.” Smartt, 53 F.4th at 499.
B. Plaintiff’s Testimony
One of plaintiff’s claimed limitations is dissociative identity disorder. Tr. 309.5 At the
administrative hearing, plaintiff testified one of his alters is non-verbal, meaning when this alter
is active, plaintiff is non-verbal. Tr. 39.
Plaintiff testified he worked part-time at a call center in late 2019 while taking online

courses to try to complete his GED. Tr. 38-40. At the call center, he worked four-hour shifts
three or four times a week until he quit “because the stress of the job was too much.” Tr. 39.
Regarding his non-verbal alter, plaintiff explained he would not come into work when non-
verbal, or if he did come in, he “would use [his] phone to text – like show texts that [he] wasn’t

5 “Dissociative identity disorder (DID) . . . is a mental health condition where you have
two or more separate identities . . . People with dissociative identity disorder may
experience several different personalities, usually referred to as alters.” Cleveland Clinic,
Dissociative Identity Disorder (Multiple Personality Disorder), Cleveland Clinic, (June
26, 2025, 12:36 PM), https://my.clevelandclinic.org/health/diseases/9792-dissociative-
identity-disorder-multiple-personality-disorder.
able to communicate in order to let them know that [he] wouldn’t be there.” Tr. 40. Plaintiff then
described his earlier job at WinCo where he worked as a cashier and in maintenance from
November 2015 to December 2017. Tr. 40, 298. When non-verbal at WinCo, plaintiff would
sometimes put up a sign saying so. Tr. 40. Plaintiff reported he has bad depression at times and

attends online therapy either once a week, once every other week, or on bad occasions—such as
preparing for the hearing—twice a week. Tr. 44.
Plaintiff testified he drives, lives with a partner, and is ambidextrous. Tr. 37-38. He
reported he rarely goes places with his partners, goes shopping maybe once a month, and will
meet with friends one-to-three times a month, but will sometimes cancel a day or two in advance.
Tr. 42. Plaintiff testified he spends his days in his living room either on his phone, PC, or
PlayStation. Id. He explained: “I’m usually either gaming or maybe reading something if I have
the capacity for it, but a lot of the time, I end up not being able to read.” Id. On an average day,
plaintiff stated he spends between an hour or up to eight hours of time gaming. Tr. 42-43.
Plaintiff answered “No” when asked by the ALJ if these games are multiplayer games. Tr. 43.

Plaintiff testified his mutism does not occur as frequently, but he will still have occasions of non-
verbal mutism that may last a week or, on one occasion, up to a month. Tr. 46.
In plaintiff’s function report, he stated he was non-verbal and could therefore not work
any jobs requiring talking. Tr. 346. He continued to state he cannot focus enough for time
management, suffers from insomnia, and his lack of sleep combined with his depression keeps
him fatigued and tired all day. Tr. 346-47.
C. Analysis
To reject a plaintiff’s subjective symptom testimony based on objective evidence, an ALJ
must “state which . . . testimony is not credible and what evidence suggests the complaints are
not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Here, the ALJ noted generally
“the claimant’s medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely consistent with the medical evidence and

other evidence in the record.” Tr. 22.
Plaintiff first argues the ALJ failed to identify what testimony was inconsistent and what
evidence undermined the testimony. Pl. Br. at 13. This Court disagrees. The ALJ identified how
plaintiff’s ability “to provide extensive handwritten responses to agency questionnaires – to the
point he required an extra page for his elaborations” undermines plaintiff’s testimony of “poor
focus and chronic fatigue.” Tr. 22, 346-54. The ALJ also identified plaintiff’s testimony relating
to his “non-verbal episodes” as inconsistent with plaintiff working “for data research companies
conducting telephone surveys over multiple years.” Tr. 22, 298. Thus, the ALJ reasonably
explained how evidence in the record was inconsistent with Plaintiff’s asserted limitations.
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (finding an ALJ may consider

inconsistencies between plaintiff’s testimony and his conduct).
Plaintiff next argues the ALJ improperly rejected plaintiff’s symptom testimony by
discounting his testimony due to a lack of supporting objective medical evidence. Pl. Br. at 14
(citing Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) and Laborin v. Berryhill, 867 F.3d
1151, 1153-54 (9th Cir. 2017)). Plaintiff’s argument is unavailing because the ALJ did not
discount plaintiff’s subjective symptom testimony due to a lack of supporting medical evidence,
but rather due to contradictory medical evidence undermining plaintiff’s testimony. Tr. 22.
The most important factor in evaluating symptom severity is whether the alleged
symptoms are substantiated by the objective medical evidence that is, the signs and clinical and
laboratory findings. 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2); SSR 16-3p, 2017 WL
5180304, at *5. In determining whether the alleged symptoms are substantiated, the ALJ will
consider any inconsistencies between plaintiff’s testimony and the rest of the evidence, including
objective medical evidence. 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4); see Bray v. Comm’r of

Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (holding inconsistency can be based on
objective medical evidence).
The ALJ cited to inconsistencies between plaintiff’s testimony and plaintiff’s medical
record, such as how despite plaintiff’s complaints of fatigue, depression, and anxiety, plaintiff
“exhibited no signs of depression or anxiety on exam,” nor did he appear socially withdrawn. Tr.
22, 523-24. To the contrary, plaintiff’s “cognition, memory, mood, affect, and speech were all
reportedly ‘normal.’” Id. The ALJ also cited two other office visits in early 2019—around the
time plaintiff alleges his symptoms became disabling—in which plaintiff’s providers reported
“similarly benign findings.” Tr. 22, 533, 542. The ALJ connected this evidence to her assessment
of plaintiff’s testimony by concluding: “[s]uch clinical findings are not indicative of a

debilitating psychological condition.” Tr. 22. The ALJ’s citation to inconsistencies between
plaintiff’s testimony and plaintiff’s medical record is “sufficiently specific to permit the court to
conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas, 278 F.3d at
958 (9th Cir. 2002).
In sum, the ALJ provided two clear and convincing reasons, supported by substantial
evidence, for discounting plaintiff’s subjective symptom testimony. This is more than sufficient
to affirm her decision on this issue. See Sims v. Berryhill, 704 F. App'x 703, 704 (9th Cir.
2017) (affirming the ALJ's opinion discounting the claimant’s testimony because the ALJ
“provided at least one clear and convincing reason supported by substantial evidence for
rejecting [the] testimony as not credible”).
II. Lay Witness Testimony
Plaintiff asserts the ALJ improperly rejected lay witness testimony—a report from

plaintiff’s case manager, Bridget Jenkins, CADC, QMHA—without providing germane reasons
for doing so. Pl. Br. at 16-17. This Court disagrees.
A. Legal standards
“Lay testimony as to a claimant’s symptoms is competent evidence that the Secretary
must take into account.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citation
omitted); 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1) (“In evaluating the intensity and
persistence of your symptoms, we consider all of the available evidence from your medical
sources and nonmedical sources about how your symptoms affect you.”). Under the 2017
regulations, the ALJ is not “required to articulate how [they] considered evidence from
nonmedical sources” using the same criteria required for the evaluation of medical sources. 20

C.F.R. §§ 404.1520c(d), 416.920c(d).
The ALJ must give reasons “germane to the witness” when discounting the testimony of
lay witnesses. Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).6 But

6 Citing the revised regulations for medical source opinions and the Ninth Circuit’s unpublished
opinion in Fryer v. Kijakazi, No. 21-36004, 2022 WL 17958630, at *3 n.1 (9th Cir. Dec. 27,
2022), the Commissioner argues the ALJ is no longer required to provide “germane reasons” for
discounting lay witness testimony. Def. Br. 12-13. The Ninth Circuit, in a recent unpublished
opinion, noted it remains “an open question whether the new regulations affect the longstanding
requirement in the Ninth Circuit that an ALJ must give germane reasons for rejecting lay witness
testimony.” Jarrett v. O’Malley, No. 23-3565, 2024 WL 4707890, at *3 (9th Cir. Nov. 7, 2024).
Absent further guidance from the Ninth Circuit, this Court disagrees that the new regulations
provide a basis to reject the Ninth Circuit’s longstanding precedent concerning “germane
reasons.” See Donna B.S. v. O’Malley, No. 6:22-CV-1571-SI, 2024 WL 3534431, at *7 (D. Or.
July 25, 2024) (so holding).
the ALJ is not required “to discuss every witness’s testimony on an individualized, witness-by-
witness basis.” Molina, 674 F.3d at 1114, superseded on other grounds by 20 C.F.R. §
404.1502(a). If the ALJ gives valid germane reasons for rejecting testimony from one witness,
the ALJ may refer only to those reasons when rejecting similar testimony by a different witness.

Id. Additionally, when the ALJ provides clear and convincing reasons for rejecting plaintiff’s
subjective complaints, and the lay witness’ testimony is similar to plaintiff’s complaints, “it
follows that the ALJ also gave germane reasons for rejecting [the lay witness’] testimony.”
Valentine, 574 F.3d at 694.
B. Analysis
Ms. Jenkins’ testimony in this case mirrored plaintiff’s testimony about his symptoms
likely because, in her own words, Ms. Jenkins “can only report what he has claimed to me.” Tr.
367. Ms. Jenkins described mental and physical health-related limitations that tracked plaintiff’s
own allegations. Compare Tr. 37-50 (plaintiff’s testimony) with Tr. 360-67 (Ms. Jenkins’
testimony). Therefore, because the ALJ noted how Ms. Jenkins’ testimony “generally relies on

the claimant’s subjective complaints,” and the ALJ provided clear and convincing reasons to
discount plaintiff’s subjective complaints, the ALJ gave germane reasons for discounting Ms.
Jenkins’ testimony. Tr. 24. Thus, the ALJ’s assessment of Ms. Jenkins was reasonable, based on
the proper legal standards, and supported by substantial evidence.
III. Medical Opinion Evidence
Finally, plaintiff argues the ALJ did not properly consider Scott Alvord’s, PsyD, and
Walter Rosenthal’s, QMHP, medical opinions. Pl. Br., at 3-11. This Court disagrees.
///
///
A. Legal standards
Where, as here, the plaintiff’s application is filed on or after March 27, 2017, the ALJ is
no longer tasked with “weighing” medical opinions, but rather must determine which are most
“persuasive.” 20 C.F.R. §§404.1520c(a)-(b); 416.920c(a)-(b). Under the new regulations, “the

former hierarchy of medical opinions – in which we assign presumptive weight based on the
extent of the doctor’s relationship – no longer applies.” Woods v. Kijakazi, 32 F.4th 785, 787
(9th Cir. 2022). An ALJ’s “decision to discredit any medical opinion, must simply be supported
by substantial evidence.” Id. “The most important factors that the agency considers when
evaluating the persuasiveness of medical opinions are supportability and consistency.” Id. at 791
(emphasis added) (internal quotations omitted); 20 C.F.R. § 404.1520c(a). However, “the extent
of the claimant’s relationship with the medical provider – what we will refer to as ‘relationship
factors’ – remains relevant under the new regulations.” Id. at 790.
Supportability means the extent to which a medical source supports the medical opinion
by explaining the “relevant . . . objective medical evidence.” Woods 32 F.4th at 791-92 (citing 20

C.F.R. § 404.1520c(c)(1)). Consistency means the extent to which a medical opinion is
“consistent . . . with the evidence from other medical sources and nonmedical sources in the
claim.” Id. (citing 20 C.F.R. § 404.1520c(c)(2)). In evaluating the “supportability” and
“consistency” of a medical opinion, the ALJ is not required to articulate how each individual
medical opinion was considered. For example, where a single medical source provides more than
one medical opinion, the ALJ will generally address the source’s medical opinions together in a
single analysis. 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1).
“An ALJ can satisfy the substantial evidence requirement by setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). In other
words, “[t]he ALJ must do more than offer his conclusions . . . [h]e must set forth his own
interpretations and explain why they, rather than the doctors’, are correct.” Reddick v. Chater,
157 F.3d 715, 725 (9th Cir. 1998). “Although [the reviewing court] will not fault the agency

merely for explaining its decision with less than ideal clarity, we still demand that the agency set
forth the reasoning for its decision in a way that allows for meaningful review.” Brown-Hunter v.
Colvin, 806 F.3d 487, 492 (9th Cir. 2017) (internal citation and quotation marks omitted).
B. Dr. Alvord
Dr. Alvord met with plaintiff three times to conduct consultative examinations, first on
June 29, 2021, then on May 11, 2022, and finally on December 21, 2022. Tr. 437-39, 443-48,
1674-79. In his report of their second consultation, Dr. Alvord provided a capability statement
and functional assessment stating plaintiff is “capable of managing his own funds” and would
have: “moderate difficulty understanding, carrying out, and remembering instructions (both
complex and one-two step)”; “moderate to marked difficulty sustaining concentration and

persisting in work related activity at a reasonable pace”; “moderate to marked difficulty [to]
maintain effective social interaction on a consistent and independent basis with supervisors, co-
workers, and in the public”; and “moderate to marked difficulty dealing with normal pressures in
a competitive work setting.” Tr. 447. The ALJ found Dr. Alvord’s functional assessment “less
persuasive” because it was unsupported by Dr. Alvord’s clinical findings and inconsistent with
mental health treatment notes from the same period. Tr. 23. The ALJ’s conclusion was supported
by substantial evidence.
First, the ALJ noted how Dr. Alvord’s assessment of plaintiff having “moderate difficulty
understanding, carrying out, and remembering” even “one-two step” instructions is unsupported
by Dr. Alvord’s own findings. Tr. 23, 446. The ALJ explained how Dr. Alvord provided “no
clinical signs suggesting the claimant would struggle with simple unskilled tasks” and,
contrarily, Dr. Alvord reported plaintiff performed a panel of memory, attention, concentration,
and general information without error. Tr. 23, 445. Plaintiff also exhibited intellectual ability in

the “low average” IQ range and had adequate long-term, short-term, and immediate working
memory. Tr. 23, 446. There were no signs plaintiff would struggle with simple unskilled tasks.
Tr. 23, 445-47.
The ALJ continued to explain how Dr. Alvord’s assessments of plaintiff having difficulty
maintaining social interaction and dealing with normal workplace pressures are “inconsistent”
with Dr. Alvord’s findings plaintiff has cyclical moods, sometimes enjoys socializing, exhibited
normal thought process, and was pleasant and cooperative throughout his examination. Tr. 22-
23, 445-46. Because the ALJ provided substantial evidence explaining how Dr. Alvord’s
assessment was unsupported by Dr. Alvord’s findings, the ALJ properly addressed the
supportability factor.

Second, the ALJ addressed the consistency of Dr. Alvord’s opinion. Tr. 23. The ALJ
found Dr. Alvord’s opinion less persuasive because it was inconsistent with mental health
treatment notes from other providers during the same period. Id. While Dr. Alvord provided the
limiting functional assessments described above, mental health professionals at the time
described plaintiff as cooperative, fully oriented, appropriate, and logical. Tr. 23, 2104, 2111.
The ALJ cited treatment notes from the time describing plaintiff’s “mental status as ‘stable for
several months’” Tr. 23 (quoting Tr. 2102, 2109). The ALJ continued to cite records from the
period describing plaintiff as open, engaged, and adequately groomed while exhibiting a linear,
goal-directed, and logical thought process—despite occasional anxiety and recurring depression.
Tr. 23, 2117. Due to these inconsistencies with the record, the ALJ found Dr. Alvord’s opinion
less persuasive.
Thus, the ALJ’s finding of Dr. Alvord’s opinion to be less persuasive complied with the
regulations governing the Commissioner’s evaluation of medical opinions and was supported by

substantial evidence.
C. Mr. Rosenthal, QMHP
Mr. Rosenthal, QMHP, treated plaintiff once or twice a week for over two years. Tr. 23,
2394. The ALJ summarized Mr. Rosenthal’s June 2023 report on plaintiff which stated plaintiff
was unable to function in a work setting due to severe depression, anxiety, nightmares, insomnia,
panic, emotional dysregulation, mutism, and trauma triggers. Tr. 23, 2395. Mr. Rosenthal also
reported plaintiff would be excessively absent from work due to these symptoms. Tr. 23, 2399.
The ALJ found Mr. Rosenthal’s assessment less persuasive because of “apparent discrepancy”
between Mr. Rosenthal’s assessment, his own treatment records, and observations of other
medical providers. Tr. 23-34. The ALJ’s conclusion was supported by substantial evidence.

First, the ALJ addressed the supportability factor by citing to Mr. Rosenthal’s treatment
notes inconsistent with Mr. Rosenthal’s June 2023 assessment of plaintiff. Tr. 23. The ALJ noted
how Mr. Rosenthal repeatedly observed plaintiff to be “cooperative, fully oriented, appropriate
appearing, and logical” over the course of five visits between November 2022 and January 2023.
Tr. 23, 2097, 2104, 2111, 2151, 2166. The ALJ then reasonably highlighted how “[i]t is therefore
unclear how the treatment provider arrived at the conclusion the claimant would be mentally
unable to tolerate competitive employment.” Tr. 23-24.
Second, the ALJ addressed the consistency factor by citing to “contemporaneous clinical
observations” by other treatment providers inconsistent with Mr. Rosenthal’s medical opinion.
Tr. 24. The ALJ noted how other treatment providers similarly observed plaintiff to be “‘calm,’
‘cooperative, open and engaged.’” Tr. 24 (quoting 2117, 2157). Therefore, the ALJ properly
applied the regulations in finding Mr. Rosenthal’s opinion less persuasive.
Plaintiff argues the ALJ improperly focused on “certain ‘objective’ evidence” while
assessing Mr. Rosenthal’s medical opinion. Pl. Br. at 5. Plaintiff argues the ALJ erred by not
citing to Mr. Rosenthal’s treatment records reporting plaintiff's instances of selective mutism. /d.
However, it is the ALJ’s duty, not this Court’s, to resolve ambiguities in the medical evidence.
Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 2008) (‘The ALJ is the final arbiter with
respect to resolving ambiguities in the medical evidence.”’); “The ALJ ‘is responsible for
determining credibility, resolving conflicts in medical testimony, and for resolving
ambiguities.” Ford v. Saul, 950 F.3d 1141, 1149 (9th Cir. 2020) (quoting Andrews v. Shalala,
53 F.3d 1035, 1039 (9th Cir. 1995)).
Because the ALJ’s assessment of Mr. Rosenthal’s opinion was reasonable and supported
by substantial evidence, it is affirmed. Garrison, 759 F.3d at 1010 (“Where the evidence can
reasonably support either affirming or reversing a decision, we [the court] must not substitute our
judgment for that of the ALJ.” (citation and internal quotation and brackets omitted)).
CONCLUSION
Based on the foregoing, pursuant to 42 U.S.C. § 405(g), sentence four, the Court
AFFIRMS the Commissioner’s decision.
IT IS SO ORDERED.
DATED this 27th day of June, 2025. IA (S\N
ANDREW HALLMAN
United States Magistrate Judge

PAGE 17 —- OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11085771. Public record. Not legal advice.