Remmers v. Social Security Administration

Filing 24

ORDER: The final decision of the Commissioner of Social Security is affirmed. The Clerk of Court shall enter judgment accordingly and terminate this case. Signed by Senior Judge James A Teilborg on 10/28/15. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Teresa Lyn Remmers,
Plaintiff,

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ORDER

v.

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No. CV-14-01028-PHX-JAT

Carolyn W. Colvin,
Acting Commissioner of Social Security,

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Defendant.

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Pending before the Court is Plaintiff Teresa Lyn Remmers’ appeal from the Social

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Security Commissioner’s denial of her application for disability insurance benefits and

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supplemental security income under the Social Security Act. Plaintiff argues that the

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administrative law judge (“ALJ”) erred by determining that Plaintiff was not credible, by

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inadequately explaining her residual functional capacity (“RFC”) assessment, and by

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failing to support her finding that Plaintiff could perform a significant number of jobs

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existing in the national economy. The Court now rules on Plaintiff’s appeal.

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I.

Background

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A.

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On May 21, 2010, Plaintiff filed an application for disability insurance benefits

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and supplemental security income, alleging that she suffered from panic and anxiety

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Procedural Background

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attacks and had been unable to work since April 1, 2010. (Tr. 33).1 Plaintiff’s claims were

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initially denied on October 22, 2010, and upon reconsideration on March 7, 2011. (Id.)

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Thereafter, Plaintiff timely requested a hearing, which was conducted by ALJ Joan G.

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Knight on June 20, 2012 in Phoenix, Arizona. (Id.) On December 13, 2012, the ALJ

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issued an unfavorable decision. (Id.) After Plaintiff’s request for review by the Social

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Security Administration Appeals Council was denied on March 4, 2014, she commenced

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this action in federal court on May 13, 2014. (Doc. 1).

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B.

Plaintiff’s Background

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Plaintiff was born on November 1, 1960 and lives with her husband and their two

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dogs. (Tr. 52, 62, 229–30). Plaintiff completed nineteen years of education (Doc. 3 at 4),

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earned bachelor’s degrees in Biochemistry and Medical Technology with a minor in

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Physics (Tr. 53), took course work towards a master’s degree (Tr. 57),2 and self-reports

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fluency in both English and German (Tr. 343). Plaintiff also spent a considerable amount

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of time in vocational training throughout her professional career. (Tr. 53, 57). Plaintiff

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worked the majority of her adult life and by all appearances was a self-reliant, competent

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employee who “built [her] own cliental” and once earned over $52,000 in a year. (Tr. 59,

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215). Currently, Plaintiff’s primary source of income comes from monthly

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unemployment benefits. (Tr. 216–17). She does drink alcohol3 and smokes cigarettes.

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(Tr. 291, 307, 343).

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Citations to “Tr.” are to the certified administrative transcript of record.
(Docs. 14, 15).
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During Plaintiff’s evaluation with the Arizona Department of Economic Security
in September of 2010, she stated that she had earned a bachelor’s degree in computer
engineering, a master’s degree in electrical engineering, and had worked as a computernetworking expert. (Tr. 306). During a psychiatric evaluation in August of 2010, Plaintiff
stated that she completed a master’s degree in biochemistry. (Tr. 313).
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As the ALJ observed, the frequency of Plaintiff’s alcohol consumption is
unclear. Since the date of her alleged disability, Plaintiff has reported that she drinks the
following amounts: 1) “4 vodkas per day” (Tr. 372); 2) “drinks daily” (Tr. 291); 3)
“drinks socially” (Tr. 394); 4) a glass of wine four to five times per week (Tr. 343); and
5) three glasses of wine per month (Tr. 67). Further, on April 21, 2011, Plaintiff
presented to her treating physician “smell[ing] of ETOH.” (Tr. 372).
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On June 20, 2012, Plaintiff appeared before the ALJ regarding her alleged

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disability of anxiety, depression, and panic attacks. (Tr. 50–75). Plaintiff testified that she

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takes two prescription medications, Xanax and Paxil, to alleviate the symptoms of her

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anxiety. (Tr. 64). She further stated that she has taken Paxil for three years. (Id.) Plaintiff

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attested, however, that Xanax sometimes makes her feel “goofy” and Paxil occasionally

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gives her a “tingling” sensation. (Tr. 64, 69). Due to these side effects, Plaintiff noted that

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her doctor is shifting her from Paxil to Lintemint. (Id.)

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Plaintiff also testified that she has difficulty sleeping and is “scared to sleep.”

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(Tr. 62). Nonetheless, Plaintiff explained that after a panic attack she gets “four solid

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hours of good hard sleep[,] . . . wake[s] up[,] . . . eat[s,] then go[es] back to sleep maybe

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for another hour or so.” (Id.) Previously, Plaintiff told evaluating physician Marcel Van

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Eerd, Ph.D., that she sleeps at least five straight hours per night, wakes up, sleeps more in

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the early morning, and then naps throughout the day. (Tr. 343). As for her daily routine,

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Plaintiff “wake[s] up in the morning” before her husband, cooks simple meals, washes

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the dishes, feeds and walks her two dogs, showers, dresses herself, watches television,

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and completes crosswords. (Tr. 62–63, 342). Plaintiff can also manage her own

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medications and hygiene, use the computer, pay bills, make telephone calls, do laundry,

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and read. (Tr. 342). As for her public endeavors, Plaintiff visits her husband’s parents

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three times per week (Tr. 83, 332), goes on mall outings (Tr. 406), uses public

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transportation to run errands (Tr. 67), rides bicycles (Tr. 376), shops (Tr. 342), and

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attends church regularly (Tr. 322).

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C.

Medical Background

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Plaintiff claims that anxiety and panic attacks have plagued her since she was a

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child but only became disabling on April 1, 2010. (Tr. 63). As her method of managing

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these issues in the past, Plaintiff explains that she “isolated” herself. (Id.) This isolation is

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apparently why Plaintiff married “later in life,”4 never had children, does not have

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Plaintiff also testified that she was married “in Indiana” at some point, which
clarifies why her last name is “Dolezal” on the majority of her medical records from 2010
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friends, keeps her family distant, and worked as a salesperson. (Id.) Plaintiff, however,

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never sought clinical assistance until months after her alleged disability onset date. See

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(Tr. 364).

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Two and a half months after Plaintiff filed her application for benefits with the

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Social Security Administration, she contacted Jewish Family and Children Services

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(“JFCS”) for intake and evaluation. (Id.) Based on a preliminary psychiatric evaluation

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on August 10, 2010, the clinician observed that Plaintiff “[d]ressed appropriately”; was

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“casually groomed”; had an “anxious” mood; maintained “good” eye contact; had “good”

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memory, insight, and judgment; made “logical” associations; and presented with “no

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mannerisms of note.” (Tr. 314). After this initial evaluation, Plaintiff “no show[ed]” to

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subsequent appointments. (Tr. 316, 370). JFCS attempted to contact Plaintiff numerous

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times, but Plaintiff never responded. (Tr. 366–69). On December 9, 2010, without ever

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attending a clinical treatment session, Plaintiff was discharged for “lack of contact.”

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(Tr. 364).

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Nearly a year after Plaintiff’s discharge from JFCS and eighteen months after

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Plaintiff filed her application with the Social Security Administration, Plaintiff presented

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to Marley House Behavioral Health (“Marley House”). (Tr. 404). Plaintiff attended six of

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her first eight weekly appointments. (Tr. 404–06). At these appointments, Plaintiff

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“appeared anxious” and used “rapid speech” but was “engaged.” (Id.) The clinician also

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noted that Plaintiff learned coping mechanisms and breathing techniques. (Id.) After this

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initial period, however, Plaintiff cancelled or failed to show up to eight of the next ten

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appointments. (Tr. 406–11). On March 19, 2012, Marley House advised Plaintiff that if

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she did not provide twenty-four hour notice before her next cancellation her file would be

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closed. (Tr. 410). One week later, Marley House closed Plaintiff’s file after she failed to

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to 2012. See (Tr. 66, 289–303, 313–40, 364–96, 404–11). Plaintiff explains that her “last
name at that time of my marriage” was Remmers, but due to the Indiana “courthouse
burn[ing] down,” she could not obtain the divorce decree to change her legal last name to
Remmers. (Id.) Interestingly, Plaintiff’s current husband, John R. Tilton, wrote in July of
2010 that he and Plaintiff had been “married for 11 years.” (Tr. 236). Exactly when,
where, and to whom Plaintiff has been legally married is unknown.
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show up to her appointment and did not provide the necessary notice. (Tr. 411).

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No Appointment, M.D. (“No Appointment”) appears to be Plaintiff’s primary care

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facility. Since the onset of her alleged disability, Plaintiff received treatment from No

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Appointment several times for a variety of issues. For example, on July 26, 2011,

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Plaintiff was treated for a knee injury she suffered when she fell off her bicycle (Tr. 376–

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77), and on November 5, 2011, Plaintiff was treated for a right arm injury resulting from

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a fall at a dog park (Tr. 384–85). Plaintiff’s anxiety is reported in four No Appointment

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records. On April 21, 2011, a No Appointment clinician noted that Plaintiff “would like

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Xanax” for her panic attacks. (Tr. 372). At this same appointment, Plaintiff “smell[ed] of

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ETOH” and reported that she “drinks 4 vodkas a day.” (Id.) On June 25, 2011 and

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January 3, 2012, the clinical impression of Plaintiff noted panic and anxiety. (Tr. 375,

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386). Finally, at a February 1, 2012 appointment, the clinician noted that Plaintiff

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“misplaced [her] Xanax” and was going through “4 days of anxiety.” (Tr. 390). The

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clinician also wrote that Plaintiff and her husband were experiencing a foreclosure and

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decreasing income. (Id.) Ultimately, the clinician prescribed Effexor, although Plaintiff

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never filled the prescription. (Tr. 391–92).

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II.

Legal Standard

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The ALJ’s decision to deny benefits will be overturned “only if it is not supported

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by substantial evidence or is based on legal error.” Magallanes v. Bowen, 881 F.2d 747,

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750 (9th Cir. 1989) (quotation omitted). “Substantial evidence” means more than a mere

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scintilla, but less than a preponderance. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.

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1998).

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

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

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Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether

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there is substantial evidence to support a decision, the Court considers the record as a

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whole, weighing both the evidence that supports the ALJ’s conclusions and the evidence

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that detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720. “Where evidence is

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

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

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logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see

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Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is

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because “[t]he trier of fact and not the reviewing court must resolve conflicts in the

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evidence, and if the evidence can support either outcome, the court may not substitute its

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judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992);

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see Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

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

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

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

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the Commissioner’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d

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498, 501 (9th Cir. 1989); see also 42 U.S.C. § 405(g). On the other hand, the Court “may

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not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue,

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495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).

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

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judgment as to whether Plaintiff is or is not disabled. Rather, the Court’s inquiry is

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constrained to the reasons asserted by the ALJ and the evidence relied upon in support of

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those reasons. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

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A.

Definition of Disability

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To qualify for disability benefits under the Social Security Act, a claimant must

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show that, among other things, she is “under a disability.” 42 U.S.C. § 423(a)(1)(E). The

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Social Security Act defines “disability” as the “inability to engage in any substantial

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gainful activity by reason of any medically determinable physical or mental impairment

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which can be expected to result in death or which has lasted or can be expected to last for

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a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A person is:

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under a disability 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
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cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.
42 U.S.C. § 423(d)(2)(A).

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B.

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

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evaluating disability claims. 20 C.F.R. § 404.1520(a)(4); see also Reddick, 157 F.3d at

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721. A finding of “not disabled” at any step in the sequential process will end the inquiry.

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20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at the first four steps,

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but the burden shifts to the Commissioner at the final step. Reddick, 157 F.3d at 721. The

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Five-Step Evaluation Process

five steps are as follows:
1. First, the ALJ determines whether the claimant is “doing substantial gainful
activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled.

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2. If the claimant is not gainfully employed, the ALJ next determines whether the

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claimant has a “severe medically determinable physical or mental impairment.” 20 C.F.R.

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§ 404.1520(a)(4)(ii). To be considered severe, the impairment must “significantly limit[]

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[the claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. §

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404.1520(c). Basic work activities are the “abilities and aptitudes to do most jobs,” such

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as lifting, carrying, reaching, understanding, carrying out and remembering simple

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instructions, responding appropriately to co-workers, and dealing with changes in routine.

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20 C.F.R. § 404.1521(b). Further, the impairment must either have lasted for “a

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continuous period of at least twelve months,” be expected to last for such a period, or be

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expected “to result in death.” 20 C.F.R. § 404.1509 (incorporated by reference in 20

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C.F.R. § 404.1520(a)(4)(ii)). The “step-two inquiry is a de minimis screening device to

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dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). If

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

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3. Having found a severe impairment, the ALJ next determines whether the

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impairment “meets or equals” one of the impairments listed in the regulations. 20 C.F.R.

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§ 404.1520(a)(4)(iii). If so, the claimant is found disabled without further inquiry. If not,

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before proceeding to the next step, the ALJ will make a finding regarding the claimant’s

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“residual functional capacity based on all the relevant medical and other evidence in [the]

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case record.” 20 C.F.R. § 404.1520(e). A claimant’s “residual functional capacity” is the

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most he can still do despite all his impairments, including those that are not severe, and

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any related symptoms. 20 C.F.R. § 404.1545(a)(1).

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4. At step four, the ALJ determines whether, despite the impairments, the claimant

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can still perform “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(iv). To make this

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determination, the ALJ compares its “residual functional capacity assessment . . . with the

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physical and mental demands of [the claimant’s] past relevant work.” 20 C.F.R. §

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404.1520(f). If the claimant can still perform the kind of work he previously did, the

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claimant is not disabled. Otherwise, the ALJ proceeds to the final step.

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5. At the final step, the ALJ determines whether the claimant “can make an

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adjustment to other work” that exists in the national economy. 20 C.F.R. §

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404.1520(a)(4)(v). In making this determination, the ALJ considers the claimant’s

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“residual functional capacity” and his “age, education, and work experience.” 20 C.F.R. §

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404.1520(g)(1). If the claimant can perform other work, he is not disabled. If the claimant

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cannot perform other work, he will be found disabled.

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

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consider all evidence in the case record. See 20 C.F.R. § 404.1520(a)(3); 20 C.F.R. §

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404.1520b. This includes medical opinions, records, self-reported symptoms, and third-

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party reporting. See 20 C.F.R. § 404.1527; 20 C.F.R. § 404.1529; SSR 06–3p, 71 Fed.

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Reg. 45593-03.

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C.

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In step one of the sequential evaluation process the ALJ found that Plaintiff did

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not engage in substantial gainful activity since her alleged onset date of April 1, 2010.

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(Tr. 36). At step two, the ALJ concluded that Plaintiff had the following medically

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determinable impairments: “panic disorder without agoraphobia; and depressive disorder,

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not otherwise specified.” (Id.) The ALJ deemed these impairments “severe” because they

The ALJ’s Evaluation under the Five-Step Process

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had caused and would continue to cause more than minimal work-related functional

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limitations. (Id.) Under step three, the ALJ determined that Plaintiff’s mental

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impairments did not meet or equal any of the listed impairments in the Social Security

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regulations. (Id.)

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Before moving on to step four, the ALJ conducted an RFC determination in light

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of Plaintiff’s testimony and objective medical evidence. (Tr. 38). The ALJ found that

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Plaintiff “has the residual functional capacity to perform a full range of work at all

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exertional levels but with the following non-exertional limitations: [Plaintiff] can perform

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the mental demands of simple work.” (Id.) At step four, the ALJ found that Plaintiff

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could not perform her past work. (Tr. 41). Finally, the ALJ concluded at step five that

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based on Plaintiff’s RFC, age, education, and work experience, Plaintiff could perform

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significant numbers of jobs existing in the national economy. (Tr. 42). Consequently, the

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ALJ found that Plaintiff was not disabled under the Social Security Act. (Tr. 43).

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III.

Analysis

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Plaintiff makes three arguments for why the Court should set aside the ALJ’s

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decision. Specifically, Plaintiff asserts that the ALJ committed the following errors: 1)

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rejecting Plaintiff’s symptom testimony without clear and convincing reasons for doing

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so, 2) assigning Plaintiff an RFC with a mental limitation of “simple work,” and 3)

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failing to consult a vocational expert (“VE”) to determine the vocational impact of

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Plaintiff’s mental impairments and failing to adequately support her finding that Plaintiff

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can perform work existing in significant numbers in the national economy. (Doc. 19).

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The Court will now address each argument in turn.

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A.

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The Court first turns to Plaintiff’s argument that the ALJ erred when she

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Whether the ALJ Properly Discredited Plaintiff’s Testimony

determined that Plaintiff’s symptom testimony was “not fully credible.”
1.

Legal Standard

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An ALJ must engage in a two-step analysis to determine whether a claimant’s

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testimony regarding subjective symptoms is credible. Molina v. Astrue, 674 F.3d 1104,

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1112 (9th Cir. 2012). First, as a threshold matter, “the ALJ must determine whether the

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claimant has presented objective medical evidence of an underlying impairment ‘which

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could reasonably be expected to produce the pain or other symptoms alleged.’”

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Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan,

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947 F.2d 341, 344 (9th Cir. 1991)). Second, if the claimant meets the first test, then “the

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ALJ ‘may not discredit a claimant’s testimony of pain and deny disability benefits solely

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because the degree of pain alleged by the claimant is not supported by objective medical

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evidence.’” Orteza v. Shalala, 50 F.3d 748, 749–750 (9th Cir. 1995) (quoting Bunnell,

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947 F.2d at 346–47). Rather, “unless an ALJ makes a finding of malingering based on

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affirmative evidence thereof,” the ALJ may only find the claimant not credible by making

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specific findings supported by the record that provide clear and convincing reasons to

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explain her credibility evaluation. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th

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Cir. 2006) (citing Smolen, 80 F.3d at 1283–84); see Lingenfelter, 504 F.3d at 1036.

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2.

Analysis

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In this case, the ALJ determined that Plaintiff satisfied the first step because

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Plaintiff’s “medically determinable impairments could reasonably be expected to cause

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the alleged symptoms.” (Tr. 39). After apparently finding no affirmative evidence of

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malingering, the ALJ concluded that Plaintiff’s “statements concerning the intensity,

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persistence and limiting effects of these symptoms are not credible to the extent they are

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inconsistent with the [“simple work”] residual functional capacity assessment.” (Id.)

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Plaintiff argues that the ALJ failed to properly weigh her subjective complaints

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because the ALJ did not give clear and convincing reasons for rejecting her testimony.

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(Doc. 19 at 7). Specifically, Plaintiff claims that the ALJ erred by “repeatedly

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impugning” Plaintiff for failing to seek treatment, follow up with treatment, and comply

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with prescribed treatment. (Id. at 8). Plaintiff also asserts that the ALJ erred by

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discrediting Plaintiff’s testimony because Plaintiff was “more active than one would

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expect for an individual who is precluded from all work as a result of mental

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impairments.” (Id.) The Court will analyze each argument in turn.

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a.

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Plaintiff’s Delay in Seeking Treatment, Failure to Attend
Treatment Appointments, and Failure to Comply with
Treatment Advice

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As one factor for discrediting Plaintiff’s testimony, the ALJ noted that despite
Plaintiff’s alleged disability onset date of April 1, 2010, Plaintiff did not seek clinical
treatment for nearly four months. (Tr. 40). Additionally, the ALJ observed that Plaintiff
repeatedly failed to comply with treatment advice or attend treatment appointments. (Id.)
For example, Plaintiff only attended the intake and psychiatric evaluation at JFCS, “no
show[ed]” to subsequent appointments, and did not respond to JFCS’s phone calls.
(Tr. 316, 366–70).5 Likewise, after an initial period of attending six of eight sessions,
Plaintiff cancelled or failed to show up to eight of ten appointments at Marley House,
leading to her discharge. (Tr. 406–11). To explain her failure to attend clinical
appointments, Plaintiff testified that she was unable to “get out of the house” because she
“couldn’t move” due to anxiety and panic attacks. (Tr. 65).
The Ninth Circuit has long held that “unexplained, or inadequately explained,
failure to seek treatment or follow a prescribed course of treatment” is a relevant factor in
assessing credibility of a claimant’s testimony. Bunnell, 947 F.2d at 346; see Meanal v.
Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (noting that an ALJ may consider claimant’s
failure to follow treatment advice as a factor in assessing claimant’s credibility).
Similarly, the Social Security Rulings (“SSR”) express that an “individual’s statements
may be less credible if the level or frequency of treatment is inconsistent with the level of
complaints, or if the medical reports or records show that the individual is not following
the treatment as prescribed and there are no good reasons for this failure.” SSR 96-7p,
1996 WL 374186 (July 2, 1996).6
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Notably, after only attending the initial intake and psychiatric evaluation at
JFCS, Plaintiff did not seek clinical treatment again until November 2011—over a year
and a half after she allegedly became disabled. (Tr. 404).
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SSRs “do not carry the ‘force of law,’ but they are binding on ALJs
nonetheless.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
The Rulings “‘reflect the official interpretation of the [Social Security Administration]
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Although the Court agrees with Plaintiff that it would be problematic to chastise a

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claimant with a “mental impairment for the exercise of poor judgment in seeking

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rehabilitation,” Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299–300

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(9th Cir. 1999) (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)), in this

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case, “there was no medical evidence that [Plaintiff’s] resistance [to] treatment was

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attributable to her mental impairment rather than her own personal preference, and it was

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reasonable for the ALJ to conclude that the ‘level or frequency of treatment was

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inconsistent with the level of complaints,’” Molina, 674 F.3d at 1114 (quoting SSR 96-

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7p). Contrary to Plaintiff’s argument, the record evidence indicates that Plaintiff has

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“good” judgment, insight, and knowledge (Tr. 314) and “very good” intellectual

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functioning and general memory (Tr. 344). Further, despite Plaintiff’s claim that she

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“could [not] get out of the house,” the ALJ repeatedly noted that Plaintiff engaged in

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numerous public activities, including: 1) walking her dogs, 2) using public transportation

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to run errands, 3) attending church regularly, 4) grocery shopping, 5) taking her dogs to

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the dog park, 6) riding her bicycle, 7) visiting her husband’s parents three times per week,

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and 8) shopping in the mall. (Tr. 37, 40).7 The high volume of activity plainly contradicts

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Plaintiff’s alleged inability to leave her house.

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Accordingly, the Court finds that the ALJ did not err by considering Plaintiff’s

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substantial delay in seeking treatment, her repeated failure to follow treatment advice,

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and her consistent failure to attend treatment appointments as reasons for discrediting

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Plaintiff’s testimony. These reasons provide specific, clear and convincing evidence for

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and are entitled to some deference as long as they are consistent with the Social Security
Act and regulations.’” Id. (quoting Avenetti v. Barnhart, 456 F.3d 1122, 1124 (9th Cir.
2006)).
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The Court also notes that by attending the first six of eight appointments at
Marley House, Plaintiff has the ability to timely attend and function at treatment sessions.
Plaintiff’s ability to attend treatment is further evidenced by the fact that Plaintiff
presented to her primary care facility nearly a dozen times within the course of eleven
months, including four times within a span of seventeen days, for treatment related to
physical injuries. (Tr. 372–93). In addition, Plaintiff explained to Dr. Van Eerd that she
attends “regular meetings on a weekly basis.” (Tr. 342).
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the ALJ to reject Plaintiff’s subjective testimony regarding the severity of her symptoms.

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See Lingenfelter, 504 F.3d at 1036.
b.

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Plaintiff’s Daily Activities

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Plaintiff also challenges the ALJ’s decision that Plaintiff’s daily activities

5

undermined her subjective complaints. (Doc. 19 at 8). Namely, Plaintiff argues that the

6

ALJ erred by considering activities of daily living that were not transferrable to a work

7

setting. (Id.)

8

The ALJ is not “required to believe every allegation of disabling pain, or else

9

disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C.

10

§ 423(d)(5)(A).” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). In evaluating the

11

claimant’s testimony, the ALJ may use “ordinary techniques of credibility evaluation,”

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Smolen, 80 F.3d at 1284, and may “consider inconsistencies either in the claimant’s

13

testimony or between the testimony and the claimant’s conduct, unexplained or

14

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

15

treatment, and whether the claimant engages in daily activities inconsistent with the

16

alleged symptoms.” Molina, 674 F.3d at 1112 (citations omitted). While a claimant need

17

not “vegetate in a dark room” in order to be eligible for benefits, Cooper v. Bowen, 815

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F.2d 557, 561 (9th Cir. 1987) (quotation omitted), the ALJ may discredit a claimant’s

19

testimony when the claimant reports participation in everyday activities indicating

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capacities that are transferable to a work setting. See Morgan v. Comm’r Soc. Sec.

21

Admin., 169 F.3d 595, 600 (9th Cir. 1999); Fair, 885 F.2d at 603. Moreover, “[e]ven

22

where those activities suggest some difficulty functioning, they may be grounds for

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discrediting the claimant’s testimony to the extent that they contradict claims of a totally

24

debilitating impairment.” Molina, 674 F.3d at 1112 (citing Turner, 613 F.3d at 1225;

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Valentine, 574 F.3d at 693).

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Here, the ALJ explained that Plaintiff’s allegations of disabling mental

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impairments were undermined by her ability to 1) attend church “regularly,” 2) use public

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transportation to run errands, 3) walk and care for her dogs on a daily basis, 4) engage in

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mall outings, 5) grocery shop, 6) ride her bicycle, 7) perform household chores, 8) cook

2

simple meals, 9) provide care for her husband, 10) clean the house, and 11) develop

3

coping strategies to deal with her occasional symptomology. (Tr. 40). Plaintiff’s

4

engagement in these pursuits reveals that Plaintiff has the ability to interact appropriately

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on a social level, function in public settings, cope with her symptoms, and concentrate for

6

sustained periods of time. Although Plaintiff’s testimony was somewhat equivocal about

7

how well she could keep up with her activities without the help of her husband, and the

8

ALJ’s interpretation of her testimony might not be the only reasonable interpretation, it is

9

still a reasonable interpretation that is supported by substantial evidence. See Rollins, 261

10

F.3d at 857; see also Matthews v. Shalala, 10 F.3d 678, 679–80 (9th Cir. 1993)

11

(upholding ALJ’s rejection of claimant’s subjective complaints where ALJ found that

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claimant’s performance of daily activities like housecleaning, light gardening, and

13

shopping undermined claimant’s assertion of disabling pain).8
c.

14

Conclusion

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Based on the foregoing, the ALJ’s negative credibility finding was a reasonable

16

interpretation of the evidence. The ALJ made specific findings supported by the record

17

that provided clear and convincing reasons to explain her credibility evaluation.9

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Consequently, “it is not [the Court’s] role to second-guess it.” Rollins, 261 F.3d at 857

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(citing Fair, 885 F.2d at 604).

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8

The Court finds that Vertigan v. Halter, 260 F.3d 1044 (9th Cir. 2001) is
inapplicable to Plaintiff’s claims. In particular, the Vertigan court remarked that the
claimant’s “constant quest for medical treatment and pain relief” refuted the ALJ’s
finding that the claimant’s ability to grocery shop, walk an hour in the malls, get together
with friends, play cards, swim, watch television, and read undermined her testimony of
disabling physical pain. Here, Plaintiff never embarked upon a “constant quest” for
clinical treatment. In fact, all evidence in the record points to a contrary conclusion.
9
The Court notes that the ALJ also discredited Plaintiff’s testimony for several
other reasons, including Plaintiff’s inconsistent statements regarding her medication
usage, alcohol consumption, and familial relationships. (Tr. 40). While Plaintiff does not
challenge the ALJ’s findings in this regard, these reasons provide additional support for
the ALJ’s decision to discredit Plaintiff’s symptom testimony.
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B.

2

The Court next turns to Plaintiff’s argument that the ALJ erred when she assigned

3

Plaintiff an RFC without physical limitations but with a mental limitation of “simple

4

work.” (Doc. 19 at 4). Plaintiff highlights two portions of the ALJ’s decision to support

5

her argument. First, Plaintiff asserts that the ALJ erred by not incorporating into the RFC

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all of the limitations identified by consultative examiner Dr. Van Eerd. (Id. at 5). Second,

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Plaintiff claims that the ALJ erred by failing to follow the “function-by-function

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assessment required by SSR 85-15.” (Id.)

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Whether the ALJ Properly Assigned Plaintiff’s RFC

1.

Dr. Van Eerd’s Opinions

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Plaintiff argues that the ALJ erred when she did not adopt all of consultative

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examiner Dr. Van Eerd’s opinions. (Id.) Specifically, Plaintiff disputes the ALJ’s

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decision to reject Dr. Van Eerd’s opinions that Plaintiff had moderate to severe

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limitations in sustaining routine, an avoidant approach to social interaction, a poor ability

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to manage stress, a dependent approach requiring considerable support to meet basic

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requirements, and a poor ability to interact with coworkers and supervisors. (Id.)

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The Ninth Circuit distinguishes between the opinions of three types of physicians:

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1) those who treat the claimant (“treating physicians”); 2) those who examine but do not

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treat the claimant (“examining physicians”); and 3) those who neither examine nor treat

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the claimant (“non-examining physicians”). Lester v. Chater, 81 F.3d 821, 830–31 (9th

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Cir. 1995). As a general rule, the opinion of an examining physician is entitled to greater

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weight than the opinion of a non-examining physician, but less than a treating physician.

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Gallant, 753 F.2d at 1454. In order to reject the un-contradicted opinion of an examining

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physician, the Commissioner must provide “clear and convincing” reasons. Id. Notably,

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even if contradicted by another doctor, the opinion of an examining doctor can only be

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rejected for specific and legitimate reasons that are supported by substantial evidence in

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the record. Andrews, 53 F.3d at 1043.

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In this case, the ALJ concluded that Dr. Van Eerd “overstated” Plaintiff’s mental

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limitations because his opinions were internally inconsistent with his own examination

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findings. (Tr. 41). The ALJ specifically noted that during Dr. Van Eerd’s examination,
Plaintiff achieved a perfect score on a cognition test. (Tr. 41). The ALJ also observed that
Dr. Van Eerd’s examination findings were the sole source of his opinions because he
examined Plaintiff on only one occasion and reviewed few, if any, of Plaintiff’s mental
health records. (Id.) Consequently, the ALJ remarked that due to the limited nature of the
evaluation, Dr. Van Eerd was unable to accurately consider the longitudinal perspective
of Plaintiff’s impairments. (Id.)10 Finally, regarding Plaintiff’s concentration, persistence,
and pace, the ALJ found that Dr. Van Eerd “overestimate[d]” Plaintiff’s limitations due
to her “educational background and reported continued daily activities including reading,
doing crossword puzzles, and watching television, all of which would require some
amount of sustained concentration.” (Tr. 37).
The Court finds that the stark discrepancy between Dr. Van Eerd’s own
examination findings and opinions constitutes a “specific and legitimate reason” to reject
his opinions that were unsupported by his clinical findings. See Matney on Behalf of
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (“The ALJ need not accept an
opinion of a physician—even a treating physician—if it is conclusionary and brief and is
unsupported by clinical findings.” (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th
Cir. 1989))). For example, Dr. Van Eerd’s opinions that Plaintiff had an avoidant
approach to social interaction and a poor ability to interact with coworkers and
supervisors directly contradicted his findings that Plaintiff had good social awareness and
social judgment, was “polite” and “respectful” during the interview, and had “fair” one-

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Dr. Van Eerd also observed in his clinical findings that Plaintiff 1) presented
with “good basic work decision making ability”; 2) had fair “one-on-one behavior and
cognitive ability”; 3) had an adequate ability to manage critique and follow work rules; 4)
had “very good” intellectual functioning and general memory; 5) was “polite” and
“respectful” during the interview; 6) had good “persistence to task”; 7) correctly
completed a mental math problem and phonics tests; 8) had “good effort and motivation”;
9) was “oriented as to time, place, person, and situation”; 10) was able to recall three of
three items after three minutes; and 11) had good social awareness and judgment.
(Tr. 341–44).
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on-one behavior. (Tr. 342–45). Dr. Van Eerd’s opinion that Plaintiff had a moderate to
severe limitation in sustaining routine was undermined by his finding that Plaintiff had
“good” persistence to task, “good” effort and motivation, and an “adequate” ability to
follow work rules. (Id.) Finally, his opinion that Plaintiff required considerable support to
meet even basic everyday needs contradicted his findings that Plaintiff possessed “very
good” intellectual functioning and an adequate ability to manage critique and follow
work rules. (Id.)
The Court concludes that due to the inconsistencies between Dr. Van Eerd’s
clinical findings and opinions, coupled with the fact that he only examined Plaintiff on
one occasion, substantial evidence existed for the ALJ to determine that Dr. Van Eerd
“overstated” the severity of Plaintiff’s mental limitations. See Andrews, 53 F.3d at 1043;
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the evidence is
susceptible to more than one rational interpretation, one of which supports the ALJ’s
decision, the ALJ’s decision must be upheld.”). Consequently, the ALJ did not err by not
incorporating all of Dr. Van Eerd’s opinions in Plaintiff’s RFC.

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2.

SSR 85-15

Plaintiff also argues that the ALJ erred by failing to follow the “function-byfunction assessment required by SSR 85-15.” (Doc. 19 at 4–5). Specifically, Plaintiff
claims that a mental RFC of “simple work” is “ill-defined” and “inadequate” because it is
an “objective skill-level classification” not “unique” to Plaintiff’s circumstances. (Id.)11
SSR 85-15 governs the evaluation of whether a claimant with only non-exertional
impairments is capable of work. SSR 85-15, 1985 WL 56857 (Jan. 1, 1985). The Ruling
articulates that a person’s “response to the demands of work is highly individualized.” Id.
Because of this, “the skill level of a position is not necessarily related to the difficulty an

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11

As to Plaintiff’s exertional limitations, the ALJ correctly determined that the
objective evidence portrayed Plaintiff engaging in an active lifestyle with no exertional
prohibitions—a view confirmed by internist Keith Cunningham, M.D., and state agency
consultant Paul Schenk, M.D. See (Tr. 81, 306–10). Consequently, the RFC properly
reflects, and Plaintiff does not dispute, Plaintiff’s lack of exertional limitations.
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individual will have in meeting the demands of the job.” Id. Accordingly, “[a]ny
impairment-related limitations created by an individual’s response to demands of work . .
. must be reflected in the RFC assessment.” Id.
The Court finds that the ALJ adequately applied SSR 85-15. The ALJ
methodically reviewed Plaintiff’s alleged symptoms and the extent to which they were
consistent with the objective medical evidence, longitudinal medical history, clinical
findings, observations of Plaintiff’s treating and examining physicians, and lay opinions
of Plaintiff’s parents and husband. (Tr. 38–41). After review of this evidence, the ALJ
concluded that the assessed RFC was “well-supported by greater weight of the entire
evidence of record, including the opinion evidence . . . as well as the limited treatment
records in evidence. Moreover, the claimant’s diminished credibility does little to
corroborate her allegations in this matter, mandating that the objective and opinion
evidence of record in this matter be given great weight.” (Id.)
The Court has already found that the ALJ properly discredited Plaintiff’s
subjective symptom testimony. The Court also concluded that the ALJ appropriately
dismissed Dr. Van Eerd’s opinions that did not correlate with his objective examination
findings. In addition, the ALJ properly discounted Plaintiff’s family member’s opinions
because they were inconsistent with the objective medical evidence of record, were likely
biased due to the close relationship with Plaintiff, and Plaintiff’s parents lived out of state
and had minimal day-to-day contact with Plaintiff. See Vincent v. Heckler, 739 F.2d
1393, 1395 (9th Cir. 1984) (holding an ALJ may discount lay testimony that conflicts
with medical evidence).
In terms of clinical findings, the ALJ considered and incorporated the objective
findings of Dr. Van Eerd’s mental examination, which showed that Plaintiff had strong
cognitive recall and memory, coupled with an ability to appropriately interact with others
on a social level. (Tr. 37, 41, 341–44). The ALJ also accounted for Plaintiff’s psychiatric
evaluation with JFCS, which indicated that Plaintiff was casually dressed and groomed
appropriately; had no mental abnormalities; and possessed good memory, insight, and
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judgment. (Tr. 40, 314). By limiting Plaintiff’s mental RFC to “simple work,” the ALJ
also considered the clinical findings that showed Plaintiff experiences periodic mental
limitations. See Frost v. Barnhart, 314 F.3d 359, 361 (9th Cir. 2002) (upholding ALJ’s
decision that medical evidence supported an RFC determination of “simple work”).
Accordingly, the ALJ did not err in formulating Plaintiff’s RFC because the
“simple work” mental limitation “took into account those limitations for which there was
record support that did not depend on [Plaintiff’s] subjective complaints.” Bayliss v.
Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).

11

Whether the ALJ Properly Relied on the Medical Vocational
Guidelines to Support Her Finding that Plaintiff Could Perform
Substantial Gainful Work Existing in the National Economy

12

Plaintiff’s final contention is that the ALJ erred at the fifth step of the sequential

13

evaluation process by relying on the Medical Vocational Guidelines (“Grids”) rather than

14

consulting a VE to determine whether Plaintiff could perform work existing in the

15

national economy. (Doc. 19 at 5–7). Plaintiff provides two general reasons to support her

16

argument. First, Plaintiff asserts that because the Grids do not adequately and accurately

17

represent her non-exertional limitations, the ALJ erred by applying them rather than

18

consulting a VE. (Id. at 6). Second, Plaintiff contends that the ALJ failed to support her

19

finding that Plaintiff could perform work existing in significant numbers in the national

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economy. (Id. at 6–7).

10

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C.

1.

Whether the Grids Adequately and Accurately Represent
Plaintiff’s Non-Exertional Limitations

At step five in the sequential process, the ALJ considers whether a claimant can
perform work that exists in the national economy in light of the claimant’s RFC, age,
education, and work experience. 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2). The ALJ
can make this determination by using either “the testimony of a vocational expert or by
reference to the Medical Vocational Guidelines.” Thomas, 278 F.3d at 955. The Grids
“consist of a matrix of [claimant’s RFC, age, work experience and education] and set
forth rules that identify whether jobs requiring a specific combination of these factors
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exist in significant numbers in the national economy.” Heckler v. Campbell, 461 U.S.

2

458, 461–62 (1983); see 20 C.F.R. §§ 404.1569, 404.1569a, 416.969, 416.969a.

3

“The [Social Security Administration’s] need for efficiency justifies use of the

4

grids at step five where they completely and accurately represent a claimant’s

5

limitations.” Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999) (citation omitted). The

6

Grids should not be used, however, if they “fail to accurately describe a claimant’s

7

particular limitations.” Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985). On the other

8

hand, an alleged non-exertional limitation “does not automatically preclude application of

9

the grids. The ALJ should first determine if a claimant’s non-exertional limitations

10

significantly limit the range of work permitted by his exertional limitations.” Tackett, 180

11

F.3d at 1102. “A vocational expert is required only when there are significant and

12

‘sufficiently severe’ non-exertional limitations not accounted for in the grid.” Hoopai v.

13

Astrue, 499 F.3d 1071, 1075–76 (9th Cir. 2007).

14
15

SSR 85-15 provides guidance for applying the Grids to cases involving claimants
with only non-exertional limitations. According to the Ruling,

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Where a person’s only impairment is mental, is not of listing
severity, but does prevent the person from meeting the mental demands of
past relevant work and prevents the transferability of acquired work skills,
the final consideration is whether the person can be expected to perform
unskilled work. The basic mental demands of competitive, remunerative,
unskilled work include the abilities (on a sustained basis) to understand,
carry out, and remember simple instructions; to respond appropriately to
supervision, coworkers, and usual work situations; and to deal with changes
in a routine work setting. . . .
....
Where there is no exertional impairment, unskilled jobs at all levels
of exertion constitute the potential occupational base for persons who can
meet the mental demands of unskilled work. These jobs ordinarily involve
dealing primarily with objects, rather than with data or people, and they
generally provide substantial vocational opportunity for persons with solely
mental impairments who retain the capacity to meet the intellectual and
emotional demands of such jobs on a sustained basis.
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SSR 85-15. The Code of Federal Regulations further describes “unskilled” work as

2

“work that needs little or no judgment to do simple duties that can be learned on the job

3

in a short period of time.” 20 C.F.R. §§ 404.1568(a), 416.968(a).

4

Here, the ALJ concluded that Plaintiff’s mental limitation to simple work would

5

not significantly affect the range of unskilled work she was able to perform at all levels of

6

exertion. (Tr. 42). The Court finds that substantial evidence supports this conclusion.

7

Initially, there was substantial evidence for the ALJ to find that Plaintiff could

8

perform unskilled work as defined in the Code of Federal Regulations and SSR 85-15.

9

The ALJ noted that Plaintiff presented to JCFS with no mental abnormalities but with

10

“good” judgment, impulse control, and insight. (Tr. 40). The ALJ also referenced Dr.

11

Van Eerd’s examination findings (Tr. 41), which indicated that Plaintiff was “very good”

12

with “[i]ntellectual functioning and general memory,” had “fair” cognitive capacity, and

13

possessed “good effort and motivation” (Tr. 344). Dr. Van Eerd also opined that Plaintiff

14

possessed “good basic work decision-making ability,” her approach to authority was

15

“respectful,” her “persistence to task was also good,” and she had “good” social

16

awareness and social judgment. (Tr. 344–45).12

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Applying these attributes to the demands of unskilled work, Plaintiff’s “very

18

good” intellectual functioning, “good” insight, and “fair” cognitive capacity enable her to

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understand simple instructions and deal with changes in a routine work setting. Her “very

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good” general memory allows her to remember simple instructions, while her “good”

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persistence to task empowers her to carry them out. Finally, Plaintiff’s “respectful”

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approach to authority, “good” impulse control, “good basic work decision making

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ability,” and “good” social awareness and social judgment permit her to respond

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appropriately to supervision, coworkers, and usual work situations.

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Of course, Plaintiff must be able to perform unskilled work “on a sustained basis.”

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While Dr. Van Eerd also opined that Plaintiff experienced more restrictive
limitations, the ALJ properly rejected these opinions due to their inconsistency with the
doctor’s own examination findings as discussed above.
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See SSR 85-15. In this regard, the ALJ found that Plaintiff had only moderate limitations

2

in concentration, persistence, and pace due to her extensive educational background;

3

lengthy career as a proficient, self-reliant employee; and daily activities that include

4

reading, watching television, and doing crossword puzzles. (Tr. 37). The ALJ also

5

observed that when Plaintiff actually attended a treatment session, she was able to stay

6

for the entire appointment. (Tr. 40). The ALJ reasonably interpreted this evidence to

7

show that Plaintiff had the ability to meet the demands of unskilled work on a sustained

8

basis. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174–76 (9th Cir. 2008) (holding

9

that an RFC finding for unskilled work is consistent with finding that a claimant had

10

moderate limitations in persistence, pace, and concentration).

11

Finally, as readily seen from the Code of Federal Regulations and SSR 85-15

12

definitions of “unskilled” work, Plaintiff’s mental limitation to “simple” work had little

13

or no effect on her occupational base at all exertional levels. The definitions already limit

14

the occupational base of unskilled work to “simple” duties and instructions. Thus, by

15

limiting Plaintiff occupational base to “simple work,” the range of available jobs was not

16

significantly decreased.

17

In short, the ALJ’s decision to apply the Grids in lieu of posing hypotheticals to a

18

VE was not error. “Considering the other reasons given by the ALJ for [Plaintiff]’s lack

19

of credibility and [her] RFC, and in the face of the substantial evidence relied on by the

20

ALJ, [Plaintiff] has not persuaded [the Court] that the ALJ overlooked any non-exertional

21

impairments ‘significant enough to limit the range of work permitted by exertional

22

limitations’ so as to preclude application of the grids.’” Haynes v. Colvin, __ F. App’x

23

__, 2015 WL 3620679, at *2 (9th Cir. 2015) (quoting Lounsburry v. Barnhart, 468 F.3d

24

1111, 1115 n.2 (9th Cir. 2006)).

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2.

Whether the ALJ Adequately Supported Her Finding that
Significant Numbers of Jobs Exist in the National Economy

Plaintiff also asserts that the ALJ failed to support her finding that Plaintiff could
perform significant numbers of jobs existing in the national economy. (Doc. 19 at 6–7).

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1

Specifically, Plaintiff contends that the ALJ erred when she did not “list in the written

2

decision any other jobs that existed in the national economy that would be suitable for

3

claimant.” (Id. at 6). Plaintiff argues that the occupational base available to her would be

4

“substantially reduce[d]” due to her limitations as evidenced by her medical records and

5

symptom testimony. (Id. at 7).

6

The Supreme Court of the United States has long held that an ALJ’s reliance on

7

the Grids alone is a valid basis for denying a claim for benefits when the Grids accurately

8

describe the claimant’s abilities and limitations. Campbell, 461 U.S. at 468, 470. As

9

discussed, the Court finds that the ALJ properly concluded that the Grids accurately

10

reflect Plaintiff’s abilities and limitations. The ALJ, therefore, did not err when she relied

11

solely on the Grids to deny Plaintiff’s claim without enumerating specific jobs that exist

12

in the national economy. See id.

13

IV.

Conclusion

14

For the reasons stated above,

15

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

16
17

is affirmed. The Clerk of Court shall enter judgment accordingly and terminate this case.
Dated this 28th day of October, 2015.

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