Rounds v. Commissioner Social Security Administration

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HEATHER ROUNDS, No. 13-35505

Plaintiff-Appellant,

D.C. No.

v. 3:12-cv-00342-

MA

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant-Appellee. ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the District of Oregon

Malcolm F. Marsh, Senior District Judge, Presiding

Submitted May 7, 2015*

Portland, Oregon

Filed August 4, 2015

Amended December 7, 2015

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 ROUNDS V. COMM’R OF SOC. SEC.

Before: William A. Fletcher and Andrew D. Hurwitz,

Circuit Judges and Michael M. Baylson,** Senior District

Judge.

Opinion by Judge Baylson

SUMMARY***

Social Security

The panel affirmed in part, and vacated in part, the

district court’s affirmance of the Commissioner of Social

Security Administration’s denial of claimant’s application

for Supplemental Security Income, and remanded for

further proceedings.

The panel held that the Administrative Law Judge

(“ALJ”) failed to reconcile an apparent conflict between a

vocational expert’s testimony and the Dictionary of

Occupational Titles, and that the error was not harmless.

The panel remanded for the ALJ to determine whether

there was a reasonable explanation to justify relying on the

vocational expert’s testimony.

**

The Honorable Michael M. Baylson, Senior District Judge for the

U.S. District Court for the Eastern District of Pennsylvania, sitting by

designation.

***

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

ROUNDS V. COMM’R OF SOC. SEC. 3

The panel held that the ALJ must determine whether

the claimant established fibromyalgia as a medically

determinable impairment under the 2010 diagnostic

criteria, and because the ALJ had not yet made this

determination it may moot claimant’s other arguments

concerning her fibromyalgia diagnosis. The panel,

accordingly, did not reach claimant’s other arguments

concerning her fibromyalgia diagnosis.

The panel held that the ALJ’s residual functional

capacity determination adequately incorporated the

opinions of Dr. McKenna and Dr. Boyd. The panel also

held that the ALJ did not improperly reject claimant’s

testimony. The panel further held that the ALJ did not err

in the consideration of lay witness testimony.

COUNSEL

Tim Wilborn, Wilborn Law Office, P.C., Las Vegas,

Nevada, for Plaintiff-Appellant.

S. Amanda Marshall, United States Attorney, Ronald K.

Silver, Assistant United States Attorney, David Morado,

Regional Chief Counsel, Region X, and Thomas M.

Elsberry, Assistant Regional Counsel, Seattle, Washington,

for Defendant-Appellee.

4 ROUNDS V. COMM’R OF SOC. SEC.

ORDER

The opinion filed on August 4, 2015, and published at

795 F.3d 1177, is hereby amended and replaced by the

amended opinion filed concurrently with this order.

With these amendments, Judges W. Fletcher, Hurwitz,

and Baylson have voted to deny the petition for panel

rehearing. Judges W. Fletcher and Hurwitz have voted to

deny the petition for rehearing en banc, and Judge Baylson

so recommends.

The full court has been advised of the petition, and no

judge of the court has requested a vote on the petition for

rehearing en banc. Fed. R. App. P. 35.

The petitions for rehearing and rehearing en banc are

DENIED. No further petitions for rehearing or rehearing

en banc will be entertained.

OPINION

BAYLSON, District Judge:

Appellant Heather Rounds appeals from the district

court’s affirmance of the decision of a Social Security

Administration Administrative Law Judge (ALJ) denying

her application for Supplemental Security Income (SSI).

Although we find no error in the ALJ’s rulings on several

issues, we vacate in part and remand because the ALJ

failed to reconcile an apparent conflict between a

vocational expert’s (VE) testimony and the Dictionary of

Occupational Titles.

ROUNDS V. COMM’R OF SOC. SEC. 5

BACKGROUND

I. Rounds’ Self-Reported Activities and

Limitations

At the time of her SSI application, Rounds was 22 years

old, a high school graduate, and the mother of a five-year-

old daughter. She was living with her daughter, a

roommate/boyfriend named Gavin Lipscomb, and her two

cats. In the function report accompanying her application,

Rounds described difficulties with social interactions,

leaving the house, sleeping, remembering to eat and care

for herself, and remembering instructions. Nevertheless,

she stated that she was able to care for her daughter and her

cats, prepare simple meals, share house work with her

roommate, shop for groceries, and pay bills. Lipscomb

submitted a third-party function report that described

Rounds in similar terms, although he also noted that she

“sees no reason to want to work.” During her oral

testimony in August 2010, Rounds described similar daily

activities but also testified to experiencing intermittent

severe pain in her shoulders, neck, and back.

Rounds’ work history is limited to two short-lived jobs

as a cashier at a gas station and at a fast food restaurant.

She described such work as “hard and exhausting” due to

not fitting in with her co-workers and struggling to interact

with customers.

II. Rounds’ Medical History

For purposes of this appeal, we focus on whether

Rounds was disabled between March 10, 2009, the date of

her application, and September 3, 2010, the date of the

6 ROUNDS V. COMM’R OF SOC. SEC.

ALJ’s decision.1 In January 2009, Rounds visited Dr.

Molly McKenna for a comprehensive neuropsychological

examination. Dr. McKenna diagnosed Rounds with

(a) major depressive disorder, moderate, recurrent, in

partial remission, (b) social phobia, (c) pervasive

developmental disorder NOS (not otherwise specified), and

(d) cognitive disorder NOS. She also noted schizotypal

personality traits, recurrent headaches, and a variety of

psychosocial stressors. Dr. McKenna noted that Rounds

believed she related better to cats than to people, had a

difficult childhood, suffered abuse during a prior

relationship, and had a history of depression. Nevertheless,

she concluded Rounds is “independent for all activities of

daily living” and the “primary impediments to returning

[her] to full-time gainful employment are her severe social

anxiety, unusual beliefs and perceptions, limited verbal and

working memory, and poor mental organization.” Dr.

McKenna opined that “[w]ith appropriate placement in

training or employment, she is a good candidate to return to

work.”

In March and April 2009, Rounds attended five mental

health diagnostic and counseling sessions at the Multnomah

County Health Department.2 During her initial

appointment, she told the treating physician that she was

mainly interested in getting a letter so she could keep her

two cats. At various times she also stated that she did not

1

See 20 C.F.R. § 416.335 (SSI can only be paid beginning the month

after an application is filed).

2

Although the final chart note in these records is signed and dated

August 3, 2009, the final date of contact was April 24, 2009.

ROUNDS V. COMM’R OF SOC. SEC. 7

want to take medication due to a prior bad experience with

Prozac and that she was disinterested in therapy but willing

to try it.

Rounds’ medical records were reviewed in May 2009

by Dr. Joshua Boyd and Dr. Richard Alley, whose opinions

were used in the initial decision to deny her SSI claim. Her

records were reviewed again in July 2009 by Dr. Robert

Henry and Dr. Martin Kehrli, whose opinions were used in

the denial of Rounds’ request for reconsideration.

From August 2009 through at least August 2010,

Rounds met with a counselor from Lifeworks NW, Nicole

Warren. Warren diagnosed Rounds with generalized

anxiety disorder and dysthymic disorder, and treated her for

depression and anxiety. During these sessions, Rounds

twice admitted that one reason for seeking therapy was to

have documentation for her disability claim. However,

Warren also noted that Rounds “under reports her

problems” to medical providers and “can never think of

what to say at the doctor’s.” Rounds described to Warren

physical and lifestyle problems including severe shoulder

pain, difficulty interacting with other people, a possible

psychotic break while living in Virginia, and her inability

to pay to heat her apartment.

In February 2010, Rounds learned about the symptoms

of fibromyalgia.3 Suspecting that she might be afflicted

3

Fibromyalgia has previously been described by this Court as “a

rheumatic disease” with symptoms that include “chronic pain

throughout the body, multiple tender points, fatigue, stiffness, and a

pattern of sleep disturbance that can exacerbate the cycle of pain and

fatigue.” Benecke v. Barnhart, 379 F.3d 587, 589-90 (9th Cir. 2004).

“Fibromyalgia’s cause is unknown, there is no cure, and it is poorly-

8 ROUNDS V. COMM’R OF SOC. SEC.

with fibromyalgia, she returned to the Multnomah County

Health Department and was treated by Dr. Robert

Henriques. In February or March 2010, after noting that

Rounds “[c]ries with exam and recoils to minimal contact”

and had “multiple Tender points on exam,” it appears that

Dr. Henriques diagnosed Rounds with chronic fibromyalgia

syndrome and recommended yoga.4 The fibromyalgia

diagnosis was also mentioned in chart notes for

appointments on April 13, 2010 and May 13, 2010, during

which Dr. Henriques recommended exercise and stretches.

He also prescribed medications for pain, nausea, and sleep.

III. Procedural History

Rounds applied for SSI in March 2009, with a

protective filing date of March 10, 2009. She alleged that

she had been disabled since June 1, 2005, and listed her

disabilities as depression, schizophrenia, social phobias,

learning disabilities, cognitive problems, and recurring

understood within much of the medical community.” Id. at 590. It is

“diagnosed entirely on the basis of patients’ reports of pain and other

symptoms” and “there are no laboratory tests to confirm the diagnosis.”

Id.

4

The record is unclear but it appears that an undated, incomplete

chart note that described multiple tender points and diagnosed

fibromyalgia corresponds to an appointment on February 24, 2010

during which Rounds also had blood work done. This initial visit was

also noted by Rounds’ therapist. However, a “problem list” from the

Health Department indicates that fibromyalgia was first diagnosed on

March 12, 2010. The chart notes from the March 12 appointment do

not mention any tender points or fibromyalgia, but are also incomplete

and do not include the section “Assessment/Plan” where fibromyalgia

is mentioned after other appointments.

ROUNDS V. COMM’R OF SOC. SEC. 9

headaches. Rounds’ claim was denied on initial review and

again after reconsideration. While awaiting a hearing

before an ALJ, Rounds submitted an update alleging that in

February and March 2010 she was diagnosed with chronic

fibromyalgia syndrome.

In August 2010, an ALJ conducted a hearing and, in

September 2010, the ALJ issued his decision denying

Rounds’ claim. The ALJ followed the five-step evaluation

process set out at 20 C.F.R. § 416.920. At Step One, the

ALJ found that Rounds had not engaged in substantial

gainful activity since March 10, 2009. At Step Two, the

ALJ determined that Rounds had severe impairments

consisting of major depressive disorder, social phobia,

pervasive developmental disorder NOS and cognitive

disorder NOS. The ALJ concluded that the record was

insufficient to support a finding that fibromyalgia was a

medically determinable impairment.

At Step Three, the ALJ determined that Rounds had

mild restrictions in activities of daily living, marked

difficulties in social functioning, moderate difficulties with

concentration, persistence or pace, and no episodes of

decompensation. As a result, Rounds’ impairments did not

meet or equal one of the impairments listed in the Social

Security Regulations at 20 C.F.R. Part 404, Subpart P,

Appendix 1.

The ALJ determined that Rounds had the residual

functional capacity (RFC) to “perform a full range of work

at all exertional levels but with the following nonexertional

limitations: she can perform one to two step tasks with no

public contact, no teamwork and limited coworker

contact.” At Step Four, the ALJ determined that Rounds

had no past relevant work. Finally, at Step Five, the ALJ

relied on a vocational expert’s testimony that someone with

10 ROUNDS V. COMM’R OF SOC. SEC.

Rounds’ RFC could perform jobs that exist in the national

and local economy, including kitchen helper, hand

packager, and recycler/reclaimer. As a result, the ALJ

found Rounds was not disabled.

The Social Security Administration Appeals Council

denied Rounds’ appeal, making the ALJ’s decision the final

decision of the Commissioner. Rounds appealed to the

District Court, which considered the five issues presented

for review in this appeal and affirmed the ALJ’s decision.

JURISDICTION

The District Court had jurisdiction under 42 U.S.C.

§ 405(g). This Court has jurisdiction under 28 U.S.C.

§ 1291.

STANDARD OF REVIEW

This Court “review[s] the district court’s order

affirming the ALJ’s denial of social security benefits de

novo, and reverse[s] only if the ALJ’s decision was not

supported by substantial evidence in the record as a whole

or if the ALJ applied the wrong legal standard.” Molina v.

Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (citing

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008),

and Stone v. Heckler, 761 F.2d 530, 531 (9th Cir. 1985)).

Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion,” and “must be ‘more than a mere scintilla,’ but

may be less than a preponderance.” Id. at 1110–11 (quoting

Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir.2009)). This Court “must consider the evidence as

a whole, weighing both the evidence that supports and the

evidence that detracts from the Commissioner’s

conclusion.” Smolen v. Chater, 80 F.3d 1273, 1279 (9th

Cir. 1996). However, if “the evidence is susceptible to

ROUNDS V. COMM’R OF SOC. SEC. 11

more than one rational interpretation, we must uphold the

ALJ’s findings if they are supported by inferences

reasonably drawn from the record.” Molina, 674 F.3d at

1111. In addition, this Court “may not reverse an ALJ’s

decision on account of an error that is harmless.” Id.

Overall, the standard of review is “highly deferential.”

Valentine, 574 F.3d at 690.

DISCUSSION

Rounds contends that the ALJ erred by discrediting her

fibromyalgia diagnosis, ignoring opinions from two

psychologists, discounting her testimony, discounting other

lay witness testimony, and wrongly concluding at Step Five

that she could perform jobs that exceed her RFC. We begin

by discussing the ALJ’s Step Five findings because we

hold that they require remand to the ALJ.

I. The ALJ’s Step Five Findings

At Step Five, “the Commissioner has the burden ‘to

identify specific jobs existing in substantial numbers in the

national economy that [a] claimant can perform despite

[his] identified limitations.’” Zavalin v. Colvin, 778 F.3d

842, 845 (9th Cir. 2015) (quoting Johnson v. Shalala,

60 F.3d 1428, 1432 (9th Cir. 1995)). Based on a VE’s

testimony, the ALJ concluded that Rounds was capable of

performing at least three jobs: kitchen helper, hand

packager, and recycler/reclaimer. According to the

Dictionary of Occupational Titles (DOT), these jobs require

a GED Reasoning Level of Two. DOT (4th ed. 1991)

§ 318.687-010, 1991 WL 672755 (kitchen helper); id.

§ 920.587-018, 1991 WL 687916 (hand packager); id.

§ 929.687-022, 1991 WL 688172 (salvage laborer).

12 ROUNDS V. COMM’R OF SOC. SEC.

There are six GED Reasoning Levels that range from

Level One (simplest) to Level Six (most complex). Id.,

App. C, § III, 1991 WL 688702. The lowest two levels are:

Level 1: Apply commonsense understanding

to carry out simple one- or two-step

instructions. Deal with standardized

situations with occasional or no variables in

or from these situations encountered on the

job.

Level 2: Apply commonsense understanding

to carry out detailed but uninvolved written

or oral instructions. Deal with problems

involving a few concrete variables in or

from standardized situations.

Id. Rounds argues that the ALJ erred because her RFC

limitation to “one to two step tasks” exactly matches the

Level One standard of carrying out “simple one- or two-

step instructions” and is exceeded by the Level Two

standard of carrying out “detailed but uninvolved written or

oral instructions.”

This Court’s recent Zavalin opinion held that “[w]hen

there is an apparent conflict between the vocational

expert’s testimony and the DOT—for example, expert

testimony that a claimant can perform an occupation

involving DOT requirements that appear more than the

claimant can handle—the ALJ is required to reconcile the

inconsistency.” Zavalin, 778 F.3d at 846 (citing Massachi

v. Astrue, 486 F.3d 1149, 1153–54 (9th Cir. 2007)).

Pursuant to Social Security Ruling (SSR) 00-4p, the ALJ

has an affirmative duty to “ask the expert to explain the

conflict and ‘then determine whether the vocational

expert’s explanation for the conflict is reasonable’ before

relying on the expert’s testimony to reach a disability

ROUNDS V. COMM’R OF SOC. SEC. 13

determination.” Id. (quoting Massachi, 486 F.3d at 1152–

54); SSR 00-4p, 2000 WL 1898704, at *2, *4 (Dec. 4,

2000).

In Zavalin, this Court remanded to the ALJ because

“there [was] an apparent conflict between the residual

functional capacity to perform simple, repetitive tasks, and

the demands of Level 3 Reasoning,” which the ALJ had not

recognized and reconciled before relying on the VE’s

testimony. Id. at 846–48. We conclude that Zavalin—this

Court’s most recent holding regarding the review of a VE’s

testimony—controls the analogous facts of this case.

Here, the ALJ stated at the outset of the VE’s testimony

that “unless you tell me otherwise, I’ll assume that your

testimony is based on your knowledge, education, training,

and experience consistent with the DOT, does that work for

you, sir?”, to which the VE replied “Yes, sir.” Based on

that exchange, the ALJ concluded that the VE’s testimony

was consistent with the DOT. As a result, although the

VE’s testimony was ostensibly consistent with the DOT, he

never directly addressed whether Rounds’ limitation to

one- to two-step tasks was consistent with jobs requiring

Level Two reasoning and, if so, why.

Under these circumstances, Zavalin is controlling.

There was an apparent conflict between Rounds’ RFC,

which limits her to performing one- and two-step tasks, and

the demands of Level Two reasoning, which requires a

person to “[a]pply commonsense understanding to carry out

detailed but uninvolved written or oral instructions.” The

conflict between Rounds’ RFC and Level Two reasoning is

brought into relief by the close similarity between Rounds’

RFC and Level One reasoning. Level One reasoning

requires a person to apply “commonsense understanding to

carry out simple one- or two-step instructions.” The

14 ROUNDS V. COMM’R OF SOC. SEC.

Commissioner resists the obvious similarity between

Rounds’ RFC and Level One reasoning, and the

concomitant contrast between Rounds’ RFC and Level

Two reasoning, by stressing that “task” and “instruction”

are different terms. In the Commissioner’s view, Rounds’

inability to complete multi-step tasks does not necessarily

contradict the VE’s opinion that she has the ability to

follow detailed instructions, as required in Level Two jobs.

Based on the record, we disagree. Only tasks with more

than one or two steps would require “detailed” instructions.

And these are precisely the kinds of tasks Rounds’ RFC

indicates she cannot perform.

Because the ALJ did not recognize the apparent conflict

between Rounds’ RFC and the demands of Level Two

reasoning, the VE did not address whether the conflict

could be resolved. As a result, we “cannot determine

whether substantial evidence supports the ALJ’s step-five

finding.” Id. at 848 (quoting Massachi, 486 F.3d at 1154).

On remand, the ALJ must determine whether there is a

reasonable explanation to justify relying on the VE’s

testimony.5 See id. at 846–48; Massachi, 486 F.3d at 1153–

54; see also Tommasetti, 533 F.3d at 1042 (“[A]n ALJ

‘may rely on expert testimony which contradicts the DOT,

but only insofar as the record contains persuasive evidence

to support the deviation.’” (quoting Johnson, 60 F.3d at

1435)).

5

Alternatively, the VE may be able to identify other jobs that require

Level One reasoning and are suitable for someone with Rounds’ other

limitations.

ROUNDS V. COMM’R OF SOC. SEC. 15

The ALJ’s failure to reconcile this apparent conflict

was not harmless. In his RFC assessment, the ALJ did not

merely restrict Rounds to “simple” or “repetitive” tasks.6

Instead, he expressly limited her to “one to two step tasks,”

apparently to address her “moderate” problems with

memory and concentration. There is no explanation in the

record as to why the VE or the ALJ may have believed that

Rounds’ specific limitation to “one to two step tasks”

should not be taken at face value. As such, the record does

not support a conclusion that the ALJ’s failure to resolve

this apparent conflict was harmless error. This Court

“cannot affirm the decision of an agency on a ground that

the agency did not invoke in making its decision.” Zavalin,

778 F.3d at 848 (quoting Stout v. Comm’r, Soc. Sec.

Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)) (holding that

ALJ’s failure to reconcile apparent conflict between RFC

and DOT was not harmless error).7

6

Unpublished decisions of panels of this Court and opinions from

some of our sister circuits have concluded that an RFC limitation to

“simple” or “repetitive” tasks is consistent with Level Two reasoning.

See Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010); Abrew v.

Astrue, 303 F. App’x 567, 569 (9th Cir. 2008) (unpublished); Lara v.

Astrue, 305 F. App’x 324, 326 (9th Cir. 2008) (unpublished); Hackett

v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005); Money v. Barnhart,

91 F. App’x 210, 215 (3d Cir. 2004) (unpublished). These decisions are

inapposite because they did not consider a specific limitation to “one to

two step tasks.”

7

In addition to the contentions discussed here, Rounds also contends

that the ALJ erred at Step Five because the hypotheticals presented to

the VE omitted limitations related to fibromyalgia, the medical

opinions of Dr. McKenna and Dr. Boyd, and the lay testimony of

Rounds, Lipscomb, and Davidson. She further argues, without citation,

that the kitchen helper job conflicts with her RFC because it may

16 ROUNDS V. COMM’R OF SOC. SEC.

II. The ALJ’s Consideration of the Fibromyalgia

Diagnosis

Rounds argues that the ALJ erred by (a) failing to

develop the record of her fibromyalgia diagnosis,

(b) relying on the opinions of medical experts who

reviewed her records before the fibromyalgia diagnosis or

who question the existence of fibromyalgia, and

(c) substituting the ALJ’s own assessment of the

fibromyalgia diagnostic criteria for that of her treating

physician. However, we need not reach these arguments.8

After the ALJ’s decision in this case, the Commissioner

adopted SSR 12-2p, which designates two separate sets of

diagnostic criteria that can establish fibromyalgia as a

medically determinable impairment. SSR 12-2p, 2012 WL

3104869, at *2–3 (Jul. 25, 2012). These criteria, published

by the American College of Rheumatology in 1990 and

2010, were both available at the time of Rounds’ August

2010 hearing and the ALJ’s September 2010 decision.9

involve extensive co-worker contact. As discussed below, the ALJ

appropriately considered and incorporated the evidence from Dr.

McKenna, Dr. Boyd, Rounds, Lipscomb, and Davidson. If the ALJ

determines on remand that Rounds has proven that fibromyalgia is a

medically determinable impairment, the ALJ will need to determine

whether and, if so, how that diagnosis changes Rounds’ RFC and the

Step Five analysis.

8

We also do not reach the Commissioner’s argument, adopted by the

District Court, that the ALJ fulfilled any duty to develop the record by

leaving the record open for two weeks after the hearing.

9

The 2010 diagnostic criteria were published in Frederick Wolfe, et

al., The American College of Rheumatology Preliminary Diagnostic

Criteria for Fibromyalgia and Measurement of Symptom Severity,

ROUNDS V. COMM’R OF SOC. SEC. 17

However, it appears that the ALJ considered only the 1990

diagnostic criteria and did not consider the 2010 criteria.10

Many of Rounds’ symptoms (e.g., cognitive and memory

problems, poor sleep, depression, anxiety, headaches,

fatigue, dizziness, and nausea) appear to fit the 2010

criteria better than the 1990 criteria. Id. at *2–3 & n.9. To

be fair to Rounds, and to be consistent with the

Commissioner’s binding ruling in SSR 12-2p that applies

on remand, the ALJ must determine whether Rounds

established fibromyalgia as a medically determinable

impairment under the 2010 diagnostic criteria. See

20 C.F.R. § 402.35(b)(1) (providing that SSRs “are binding

on all components of the Social Security Administration”).

Because the ALJ has not yet made this determination and it

may moot Rounds’ other arguments regarding her

fibromyalgia diagnosis, we need not reach Rounds’ other

arguments at this time.

62 Arthritis Care & Research 600 (May 2010), available at

https://www.rheumatology.org/ACR/practice/clinical/classification/fibr

omyalgia/2010_Preliminary_Diagnostic_Criteria.pdf.

10

The ALJ concluded that fibromyalgia’s “signs are primarily the

tender points” and that “merely stating ‘multiple’ tender points were

positive is not enough.” However, in contrast to the 1990 criteria, the

2010 diagnostic criteria do not require a specific number of tender

points in specific locations. See SSR 12-2p, 2012 WL 3104869, at *2–

3. As the Commissioner later ruled, the 2010 criteria can be used to

determine that fibromyalgia is a medically determinable impairment “if

the case record does not include a report of the results of tender-point

testing, or the report does not describe the number and location on the

body of the positive tender points.” Id. at *3 n.6.

18 ROUNDS V. COMM’R OF SOC. SEC.

III. The ALJ’s Evaluation of Medical Opinions

Rounds argues that the ALJ erred by ignoring Dr.

Boyd’s opinion (also adopted by Dr. Rullman) that Rounds

has moderate limitations in her ability to accept instructions

and respond appropriately to criticism from supervisors.

This “opinion” was a checkbox in Dr. Boyd’s “Summary

Conclusions” and was not repeated in his narrative

“Functional Capacity Assessment.”

The ALJ did not ignore Dr. Boyd’s opinion; rather, he

explicitly noted that Dr. Boyd had checked this box and

gave the whole of Dr. Boyd’s opinion, including the

narrative portion, “great weight” in crafting Rounds’ RFC.

Rounds also argues that the ALJ improperly rejected

some of Dr. McKenna’s “Treatment Recommendations”

that Rounds should (a) avoid math or use a calculator,

(b) write information down and use various memory aids,

(c) request that instructions be repeated and provided both

verbally and in writing, and (d) limit customer or public

contact. However, Dr. McKenna’s formal conclusions were

set out in a separate section of her report subtitled “Clinical

Formulation/Prognosis” and Rounds does not contend that

the ALJ ignored those conclusions. An ALJ may rationally

rely on specific imperatives regarding a claimant’s

limitations, rather than recommendations. Carmickle v.

Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir.

2008). In addition, the ALJ is responsible for translating

and incorporating clinical findings into a succinct RFC. See

Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir.

2008).

We hold that the ALJ’s RFC determination—which

limited Rounds to “one to two step tasks with no public

contact, no teamwork and limited coworker contact”—

ROUNDS V. COMM’R OF SOC. SEC. 19

adequately incorporated the opinions of Dr. McKenna and

Dr. Boyd.

IV. The ALJ’s Consideration of Rounds’

Testimony

Rounds argues that the ALJ improperly rejected her

testimony. Having determined that Rounds’ medically

determinable impairments could reasonably be expected to

cause her alleged symptoms, “the ALJ may reject the

claimant’s testimony regarding the severity of her

symptoms only if he makes specific findings stating clear

and convincing reasons for doing so.” Smolen, 80 F.3d at

1284. “The ALJ must state specifically which symptom

testimony is not credible and what facts in the record lead

to that conclusion.” Id. To assess a claimant’s credibility,

the ALJ may consider, among other factors, “ordinary

techniques of credibility evaluation,” “inadequately

explained failure to seek treatment or to follow a prescribed

course of treatment,” and “the claimant’s daily activities.”

Id. The ALJ must also consider factors including the

“observations of treating and examining physicians and

other third parties regarding . . . the claimant’s symptom[s];

. . . functional restrictions caused by the symptoms; and the

claimant’s daily activities.” Id.

Here, the ALJ considered Rounds’ written and oral

testimony and concluded that Rounds’ “statements

concerning the intensity, persistence and limiting effects of

[her] symptoms are not credible to the extent they are

inconsistent with the above residual functional capacity

assessment.” The ALJ explicitly did “not discount the

claimant’s consistent report of significant difficulties,

particularly with interpersonal relationships.” In support of

these conclusions, the ALJ reviewed and summarized the

lay and expert testimony in the record. To justify

20 ROUNDS V. COMM’R OF SOC. SEC.

discounting Rounds’ testimony about the severity of her

symptoms, the ALJ concluded that her medical records

show a higher level of functionality, that she has been

uncooperative regarding use of medications and engaging

in therapy, and that she appears to access support resources

only when she has secondary motivations.

Taken in context, the ALJ’s determination of Rounds’

RFC was based on the totality of Rounds’ and her

roommate’s testimony about her daily activities and the

opinions of Dr. McKenna and Dr. Boyd regarding her

functional capabilities. This evidence provides clear and

convincing reasons for discounting Rounds’ testimony

regarding the severity of her symptoms. See Molina,

674 F.3d at 1112–14 (affirming ALJ’s decision to discount

claimant’s testimony based on inconsistencies with her

daily activities and the medical evidence, and her failure to

seek or follow prescribed treatment); Matney ex rel.

Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992)

(affirming ALJ’s decision to discount claimant’s pain

testimony based on his doctor’s report, his daily activities,

and his secondary motive to seek disability benefits). We

discern no error in the ALJ’s consideration of Rounds’

testimony.

V. The ALJ’s Consideration of Lay Witness

Testimony

Rounds argues that the ALJ improperly rejected lay

witness testimony from Rounds’ roommate, Lipscomb,

who stated that Rounds needs instructions repeated and has

trouble focusing on and finishing tasks. She also argues that

the ALJ ignored a lay witness statement from an Oregon

state employee, Gary Davidson, who noted that Rounds had

memory problems and concluded that she was unable to

work outside a sheltered work environment. “[C]ompetent

ROUNDS V. COMM’R OF SOC. SEC. 21

lay witness testimony ‘cannot be disregarded without

comment’” and “in order to discount competent lay witness

testimony, the ALJ ‘must give reasons that are germane to

each witness.’” Molina, 674 F.3d at 1114 (quoting Nguyen

v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) and Dodrill

v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)) (emphasis

omitted).

With respect to Lipscomb, the ALJ described his

statement as generally consistent with Rounds’ testimony

and statements, accepted it “as descriptive of his

perceptions,” but concluded that “it does not provide

sufficient support to alter the RFC arrived at herein.” The

ALJ also noted that Lipscomb’s statement indicated that

Rounds sees no reason to want to work, suggesting a

secondary motive for applying for SSI. It is not clear that

the ALJ rejected Lipscomb’s statement at all. The ALJ

limited her RFC to one- to two-step tasks, which addressed

her memory and focus problems. Even if the ALJ

discounted his statement, Lipscomb’s admission that

Rounds has a secondary motive for seeking SSI was a

germane reason for doing so.

As for Davidson, even assuming that he was a

“competent lay witness,” the ALJ’s failure to consider his

comments was harmless. Davidson was Rounds’ appointed

representative for filing her SSI claim. As her advocate, he

was not a typical lay witness. Even if he qualified as a lay

witness, most of his comments were in the form of

conclusions that Rounds is disabled and unable to work

outside of a sheltered work environment. These are

ultimate determinations reserved to the ALJ. See

Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001)

(noting that even a treating physician’s opinion is not

binding on the ultimate determination of disability).

Davidson’s non-conclusory comments refer to “memory

22 ROUNDS V. COMM’R OF SOC. SEC.

problems” and were addressed in the RFC by limiting

Rounds to one- to two-step tasks. Accordingly, to the

extent the ALJ may have failed to consider Davidson’s lay

witness evidence, the error was harmless because it was

“inconsequential to the ultimate nondisability

determination.” Molina, 674 F.3d at 1115.

CONCLUSION

We affirm in part, vacate in part, and remand to the

District Court so that it may remand to the agency for

further proceedings consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.

Each party shall bear its own costs on appeal.