Thompson v. Colvin

Filing 16

ORDER that the decision of the ALJ is affirmed and the Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 11/1/16. (KGM)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Tamara L Thompson,
Plaintiff,

10
11

ORDER

v.

12

No. CV-16-00372-PHX-JAT

Carolyn W Colvin,

13

Defendant.

14
15

Pending before the Court is Plaintiff’s appeal of the Commissioner’s denial of her

16

application for social security disability benefits. The parties are familiar with Plaintiff’s

17

medical history; therefore, the Court will only discuss it below as necessary for the

18

decision.

19

Plaintiff does not claim a particular error in the Administrative Law Judge’s (ALJ)

20

application of the five-step sequential evaluation to determine whether Plaintiff is entitled

21

to benefits. See Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987) (citing 20 C.F.R. §§

22

404.1520(b)-(f)). Instead, Plaintiff claims four separate errors regarding how the ALJ

23

reached her conclusions within the five-steps. The four claimed errors are: 1) the ALJ

24

failed to give sufficient reasons for discrediting the treating physicians; 2) the ALJ failed

25

to give sufficient reasons for discrediting Plaintiff’s claimed symptoms; 3) the ALJ failed

26

to give sufficient reasons for discrediting the lay witness testimony; and 4) the ALJ did

27

not pose a complete hypothetical to the vocational expert. The Court will consider each

28

of these claims of error in turn.

1

I.

Physicians

2

The ALJ must give “clear and convincing” reasons for rejecting the opinion of a

3

treating if it is not contradicted. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).

4

The ALJ must give “specific and legitimate” reasons, supported by substantial evidence

5

in the record, for rejecting the opinion of a treating physician when it is contradicted.

6

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Here, Plaintiff argues the ALJ

7

failed to give sufficient reasons to reject the opinions of her two treating physicians: Dr.

8

Dearing and Dr. Syal. (Doc. 14 at 18). Plaintiff also argues that the ALJ failed to give

9

sufficient reasons for rejecting portions of the opinion of examining physician, Dr.

10

Darden. (Id.).

11

Plaintiff never states whether she argues that the clear and convincing test verses

12

the specific and legitimate test applies in this case. (Doc. 14 at 12). Defendant argues

13

that because there is a conflict in the medical evidence, the specific and legitimate test

14

applies. (Doc. 15 at 4). The Court agrees with Defendant and will determine whether the

15

ALJ provided specific and legitimate reasons for rejecting the opinions at issue.

16

A.

17

The ALJ gave the following reasons for rejecting the testimony of treating

18

physician Dr. Dearing: 1) his opinions were not consistent with his own clinical and

19

laboratory findings (Doc. 11-3 at 41); 2) his opinions were not consistent with the

20

medical records (id.); 3) his opinions were based on Plaintiff’s self-reported symptoms

21

(id); 4) his limitations on Plaintiff’s abilities were not based on objective evidence and he

22

gave no explanation for how he arrived at the limitations (such as breaks every two

23

hours) (id.); 5) his opinions on fibromyalgia and anxiety are outside his area of expertise;

24

and, 6) any legal conclusions about the Plaintiff’s ability to work are the exclusive

25

purview of the ALJ (id.).

Dr. Dearing

26

Plaintiff only argues that one of these six reasons is not a legitimate reason to

27

discredit Dr. Dearing, namely that the diagnoses are outside his area of expertise. As to

28

the other five reasons, Plaintiff seems to concede that such reasons could be specific and

-2-

1

legitimate, but argues that the reasons are not supported by the record in this case.

2

1.

3

Specific and Legitimate
a.

Fifth Reason stated by ALJ

4

Turning first to the doctor’s area of expertise, Plaintiff argues that the ALJ cannot

5

discredit a treating physician for giving an opinion outside his area of expertise. (Doc. 14

6

at 14 (citing Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995))). In Lester, the Court of

7

Appeals stated that the treating physician was entitled to special weight, even for

8

diagnoses outside his area of expertise, if the doctor was actually treating the condition.

9

81 F.3d at 833. The Court of Appeals also stated that the treating physician’s opinion as

10

to the impact of the combination of all of a plaintiff’s limitations was also entitled to

11

special weight. Id. Defendant counters and cites 20 C.F.R. § 404.1527(d)(5), which

12

allows the ALJ to consider the doctor’s specialty when determining what weight to give

13

the opinion. (Doc. 15 at 7 n.2). Alternatively, Defendant argues that any error was

14

harmless. (Id.).

15

In this area, it appears that what the regulations permit the ALJ to consider and

16

what the Ninth Circuit Court of Appeals permits the ALJ to consider in determining the

17

weight to give an opinion are not exactly aligned. In this case, it appears the ALJ did

18

give a reason for discounting the weight to be given to the treating physician’s opinion

19

that was impermissible under Lester. Accordingly, this was error. However, because the

20

ALJ gave five additional permissible reasons, this Court agrees with Defendant that this

21

error was harmless. See Stout v. Commissioner of Sec. Sec. Admin., 454 F3d 1050, 1054-

22

56 (9th Cir. 2006).

23

2.

Substantial Evidence of Record

24

Next the Court must determine whether the ALJ’s five other reasons are supported

25

by substantial evidence in the record. Substantial evidence is more than a mere scintilla,

26

but less than a preponderance. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). It

27

is such relevant evidence as a reasonable mind might accept as adequate to support a

28

conclusion.

Id.

In determining whether there is substantial evidence to support a

-3-

1

decision, this Court considers the record as a whole, weighing both the evidence that

2

supports the ALJ’s conclusions and the evidence that detracts from the ALJ’s

3

conclusions. Id. If there is sufficient evidence to support the ALJ’s determination, the

4

Court cannot substitute its own determination. See Young v. Sullivan, 911 F.2d 180, 184

5

(9th Cir. 1990). Additionally, the ALJ is responsible for resolving conflicts in medical

6

testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala,

7

53 F.3d 1035, 1039 (9th Cir. 1995).

8

a.

First Reason Stated by ALJ

9

First, Plaintiff acknowledges that one basis the ALJ gave for giving little weight to

10

the opinion of Dr. Dearing was that the doctor’s ultimate opinions on Plaintiff’s

11

limitations were inconsistent with his own treatment notes and inconsistent with his own

12

laboratory findings. (Doc. 14 at 13). Other than saying that Dr. Dearing’s opinions are

13

consistent with the medical record (which would presumably include Dr. Dearing’s own

14

record), Plaintiff makes no specific argument addressing this reason given by the ALJ.

15

Conversely, Defendant points to multiple places in Dr. Dearing’s treatment notes

16

that support the ALJ’s conclusion that Dr. Dearing’s opinions are not supported by his

17

clinical findings.

18

normal physical exams during the relevant period. (Doc. 15 at 5 (citing Tr. 567, 57-68,

19

576, 582-83, 588, 600, 651, 656-57, 672, 694, 699)). Plaintiff denied having myalgias

20

(muscle pain), arthralgias (joint pain), or muscle weakness. (Doc. 15 at 5 (citing Tr. 567,

21

770).

22

functional capacity, Plaintiff’s physical exam was normal, with Dr. Dearing finding that

23

Plaintiff was oriented to person, place and tine, was well-developed and well-nourished,

24

and had a normal range of motion and normal reflexes. (Doc. 15 at 5 (citing Tr. 588)).

25

This evidence is substantial and supports the ALJ’s first reason.

26

For example, Dr. Dearing reported that Plaintiff had consistently

Further, on the day Dr. Dearing completed the form on Plaintiff’s residual

b.

Second Reason Stated by ALJ

27

Second, Plaintiff argues that the ALJ’s reason for rejecting the opinions of Dr.

28

Dearing because they are inconsistent with other medical records is incorrect.

-4-

1

Specifically, Plaintiff argues that Dr. Dearing’s assessment of Plaintiff’s mental

2

limitations was consistent with Dr. Klink’s opinion. (Doc. 14 at 14-15). Plaintiff further

3

argues that Dr. Dearing’s assessment of Plaintiff’s physical limitations was consistent

4

with the opinion of Dr. Bhalla. (Doc. 14 at 15). Finally, Plaintiff argued that Dr.

5

Dearing’s assessment of Plaintiff’s physical limitations was consistent with her physical

6

therapy and chiropractic treatment of back, foot and ankle pain. (Doc. 14 at 15).

7

Defendant responds and notes that Dr. Klink’s opinions did not cause Plaintiff to

8

be disabled, but instead allowed for simple, routine work with repetitive tasks; thus,

9

Defendant concludes that Dr. Dearing’s opinion being consistent with Dr. Klink’s

10

opinion does not lead to a disability finding. (Doc. 15 at 8). Further, Defendant notes

11

that Plaintiff’s symptoms (once having 14 tender points, and once having only 8 tender

12

points), Plaintiff’s denial of having muscle pain, and the limited clinical findings by any

13

doctor on arthritis were all inconsistent with Dr. Dearing’s diagnosis of fibromyalgia and

14

inflammatory arthritis. (Doc. 15 at 6 (citing Tr. 39, 507, 433, 607, 567, and 38)).

15

All of the evidence cited by Defendant is substantial evidence to support the ALJ’s

16

decision. When there is conflict in the medical evidence, the ALJ must resolve the

17

conflict; and here, there is substantial evidence to support the ALJ’s conclusion that the

18

evidence does not support Dr. Dearing’s findings.

19

c.

Third Reason Stated by ALJ

20

Defendant notes that the ALJ can reject treating physician’s opinions that are not

21

based on clinical findings, but instead based on Plaintiff’s self-reported symptoms, if the

22

ALJ properly discredited the Plaintiff’s self-reported symptoms. (Doc. 15 at 6 (citing

23

Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014)). Plaintiff does not dispute this

24

law. Instead, Plaintiff argues that the ALJ did not properly reject her symptoms. The

25

Court will address these arguments below.

26

d.

Fourth Reason Stated by ALJ

27

Next, Defendant argues that the ALJ properly failed to give weight to Dr. Dearing

28

because his limitations were brief, conclusory and inadequately supported by clinical

-5-

1

findings. (Doc. 15 at 6 (citing Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012))).

2

Plaintiff argues that Dr. Dearing’s limitations are consistent with other doctor’s

3

diagnoses. (Doc. 14 at 15). However, Plaintiff does not dispute the ALJ’s statement that

4

there is nothing in Dr. Dearing’s clinical findings to support or show why Dr. Dearing

5

concluded that Plaintiff: 1) needed unscheduled breaks every 2 hours; and 2) can only sit

6

for 3 hours. (Doc. 11-3 at 41). Thus, this reason stated by the ALJ is supported by

7

substantial evidence in the record.

8

e.

Sixth Reason Stated by ALJ

9

Finally, the ALJ rejected any “opinion” of Dr. Dearing that was a legal conclusion

10

about Plaintiff’s eligibility for social security disability benefits. The specific findings

11

the ALJ rejected included that Plaintiff: 1) is “disabled”; 2) is “unable to work”; 3)

12

“cannot perform a past job”; 4) “meets a Listing”; and is “unable to work full time.”

13

(Doc. 11-3 at 41). Plaintiff argues that Dr. Dearing’s ultimate conclusion that someone

14

with the limitations Dr. Dearing found in Plaintiff would not be able to sustain

15

competitive employment is a medical conclusion. (Doc. 14 at 15). This Court disagrees.

16

Whether Plaintiff can work is the ultimate question the ALJ must answer, not a medical

17

condition a doctor can diagnose. Thus, the ALJ gave a proper reason for discounting this

18

portion of Dr. Dearing’s opinion.

19

3.

Conclusion Regarding Dr. Dearing

20

Because the ALJ gave at least four specific and legitimate reasons supported by

21

substantial evidence of record to not give controlling weight to the opinions and

22

limitations of Dr. Dearing, the Court will not reverse the ALJ based on this claim of

23

error.

24

B.

25

The ALJ gave the following reasons for not crediting the opinion of treating

26

physician Dr. Syal: 1) the opinions are not consistent with the medical records (Doc. 11-3

27

at 49); 2) the opinions are not consistent with Dr. Syal’s own clinical findings; 3) Dr.

28

Syal’s opinion on Plaintiff’s limitations is not supported by objective evidence, and was

Dr. Syal

-6-

1

vague with no medical support; 4) Dr. Syal’s limitations were internally inconsistent and

2

inconsistent with other medical evidence; and 5) Dr. Syal’s opinion on Plaintiff’s mental

3

limitation was outside his area of expertise. Similar to the discussion of Dr. Dearing

4

above, Plaintiff effectively argues that reasons 1-4 are not supported by the record, and

5

that reason 5 is not a legitimate reason to discredit Dr. Syal’s opinions.

6

1.

Fifth Reason Stated by ALJ

7

For the same reasons stated above with respect to Dr. Dearing, the Court finds that

8

in this Circuit, it is error for the ALJ to discredit a treating physician because he or she is

9

rendering opinions outside his or her area of expertise. However, because the ALJ gave

10
11

four other reasons for discrediting Dr. Syal’s opinion, this error was harmless.
2.

First Reason Stated by ALJ

12

Plaintiff argues that the ALJ’s statement that Dr. Syal’s opinions and limitations

13

are inconsistent with the other medical evidence is incorrect because Dr. Syal’s opinions

14

are consistent with the opinions of Drs. Klinck and Bhalla. (Doc. 14 at 16-17). In her

15

opinion, the ALJ specifically noted that she was relying on the opinions of Dr. Daughtery

16

(Tr. 113-140); Dr. DKH (Tr. 143-174) and Dr. Darden (Tr. 438-434) and that they

17

conflicted with Dr. Syal’s opinions. (Doc. 11-3 at 48). As indicated above, it is the

18

ALJ’s job to resolve conflicts in the medical testimony. Thus, Plaintiff’s argument that

19

because Dr. Syal is not inconsistent with two doctors of record means he is not

20

inconsistent with any doctors of record is incorrect. Accordingly, this reason stated by

21

the ALJ is supported by substantial evidence of record.

22

3.

Second Reason Stated by ALJ

23

Next, the ALJ discounted the opinions and limitations of Dr. Syal because they are

24

not consistent with his own clinical findings. Defendant notes that although Dr. Syal

25

found limitations of sitting or standing for only 30 minutes at a time and walking only

26

half a block (Doc. 15 at 8-9), Dr. Syal’s examine notes stated that the physical exam was

27

normal, motor exam was normal, strength was normal, deep tendon reflexes were 2+,

28

plantar response was normal, sensory exam was normal, coordination was intact and gate

-7-

1

was normal (Doc. 15 at 9). Further, Plaintiff alleged she can sit longer than Dr. Syal

2

opined. (Doc. 15 at 9). And Dr. Syal believed Plaintiff was a malingerer. (Doc. 15 at 9).

3

Additionally, the ALJ noted that while Dr. Syal found many limitations on Plaintiff

4

(sitting 4 hours of an 8 hour day, lifting no more than 20 pounds, unscheduled breaks

5

every 2 hours for 5-10 minutes, and severe symptoms that would frequently interfere with

6

the attention and concentration required to perform simple repetitive tasks), Plaintiff was

7

nonetheless working 8 hours per day, 5 days a week at the time Dr. Syal made these

8

findings. (Doc. 11-3 at 49). All of these facts taken together are substantial evidence of

9

record to support the ALJ’s reason for not crediting Dr. Syal, specifically because the

10

doctor’s own notes are inconsistent with his diagnosed limitations.

11

4.

Third Reason Stated by ALJ

12

The ALJ also did not credit Dr. Syal’s opinion because it was vague and

13

unsupported by objective evidence. Plaintiff argues that the side effects of Plaintiff’s

14

various medications could be an objective basis for Dr. Syal’s limitations. (Doc. 14 at

15

16). However, for the reasons stated with respect to the ALJ’s second reason for not

16

giving greater weight to Dr. Syal, Dr. Syal’s examination findings are inconsistent with

17

the limitations. Therefore, the record supports the ALJ’s finding that the objective

18

evidence does not support the limitations and is vague as to how the doctor arrived at the

19

limitations.

20

5.

Fourth Reason Stated by ALJ

21

Next, the ALJ noted that Dr. Syal’s findings were internally inconsistent. (Doc.

22

11-3 at 49). By way of example, Defendant notes that Dr. Syal opined that Plaintiff had

23

no limitations in repetitive reaching, handling, or fingering, but concluded Plaintiff had

24

limitations in the ability to do these tasks. (Doc. 15 at 9 (citing Tr. 728)). These internal

25

inconsistencies are substantial evidence of record to support the ALJ’s reason for not

26

crediting the opinion of Dr. Syal.

27
28

6.

Conclusion Regarding Dr. Syal

For the foregoing reasons, the ALJ gave specific and legitimate reasons supported

-8-

1

by substantial evidence of record to not give controlling weight to the opinions and

2

limitations of Dr. Syal. The Court will not reverse the ALJ based on this claim of error.

3

C.

4

Plaintiff argues the ALJ erred in only crediting part and not all of examining

5

physician, Dr. Darden’s opinion. Defendant responds and notes that much of Dr.

6

Darden’s opinion is expressed as: Plaintiff “may” have certain limitations. Further, the

7

ALJ found that, “… Dr. Darden’s restrictions contain wording such as ‘likely’ and ‘may

8

experience’ and ‘may be vulnerable’, which are vague and imprecise as to the claimant’s

9

true limitations.” (Doc. 11-3 at 48). The ALJ did not err in not crediting limitations that

10

were equivocal. See Glosenger v. Social Sec. Admin., 2014 WL 1513995, *6 (April 16

11

2014); Valentine v. Commissioner of Social Security Administration, 574 F.3d 685, 691-

12

92 (9th Cir. 2009). Accordingly, the Court will not reverse the ALJ based on this claim

13

of error.

Dr. Darden

14

D.

15

The Court finds that the ALJ gave sufficient reasons for rejecting the opinions of

16

the physicians recounted above. Accordingly, the Court will not reverse the decision of

17

the ALJ based on Plaintiff’s claims of error regarding the physicians’ opinions.

18

II.

Conclusion Regarding Physicians

Plaintiff’s Subjective Complaints

19

The parties agree that under the facts of this case, the ALJ could reject the

20

Plaintiff’s symptom testimony only if the ALJ gave clear and convincing reasons for

21

rejecting the testimony. (Doc. 14 at 18-19; Doc. 15 at 11); see generally Garrison v.

22

Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014). The ALJ gave 5 reasons for rejecting

23

Plaintiff’s symptom testimony, specifically: 1) the severity of her claimed symptoms

24

were inconsistent with and not supported by the medical evidence; 2) the severity of her

25

claimed symptoms were inconsistent with her daily activities; 3) her reports of her

26

symptoms throughout the record were inconsistent and unpersuasive; 4) her testimony

27

was inconsistent with her treatment history; and 5) her prior work history and reasons for

28

being unemployed were inconsistent with her symptom testimony. In her opinion, the

-9-

1
2

ALJ gave expansive explanations for each of these reasons. (Doc. 11-3 at 44-47).
Plaintiff claims the ALJ erred in failing to fully credit Plaintiff’s symptom

3

testimony.

4

treatment history was inconsistent with her claimed symptoms) by advancing reasons for

5

Plaintiff’s treatment history which are not supported by the record. Specifically, Plaintiff

6

hypothesizes that her failure to take her medication was perhaps because of poor

7

memory, perhaps due to financial limitations, or perhaps due to poor judgment from her

8

mental issues. (Doc. 14 at 20). However, Plaintiff cites nothing for these arguments and

9

none of these arguments appear to have been presented to the ALJ.

First, Plaintiff takes issue with the ALJ’s fourth reason (that Plaintiff’s

10

Defendant responded to this argument, relying on Molina v. Astrue, 674 F.3d

11

1104, 1114 (9th 2012), which held, “Although Molina provided reasons for resisting

12

treatment, there was no medical evidence that Molina’s resistance was attributable to her

13

mental impairment rather than her own personal preference, and it was reasonable for the

14

ALJ to conclude that the ‘level or frequency of treatment [was] inconsistent with the level

15

of complaint.” This Court agrees with Defendant that this case is analogous to Molina.

16

Thus, the ALJ’s reason for discrediting Plaintiff (that her treatment history is inconsistent

17

with the severity of the symptoms she claims), is a clear and convincing reason which

18

was not premised on any error.

19

Second, Plaintiff claims the ALJ’s first reason (that Plaintiff’s claimed symptoms

20

were inconsistent with the medical record and not supported by the medical record) was

21

error. Specifically, Plaintiff claims that a few periods of well-being do not mean that

22

Plaintiff is not disabled and that Plaintiff’s stable or improved symptoms do not mean she

23

is not disabled. (Doc. 14 at 20).

24

While Plaintiff argues she has had only temporary recoveries from mental

25

limitations, the record detailed by the ALJ is inconsistent with Plaintiff’s arguments. The

26

ALJ noted 11 examples in the medical records that supported the ALJ’s finding that

27

Plaintiff had either improved, was experiencing no symptoms, or that her mood was

28

stable. (Doc. 11-3 at 45-46, citing Exhibits: B22F, p.51; 12F; B10F; B22F, pp.19-20;

- 10 -

1

B22F, p.26; B22F; B23F; B13F; B16F; B 18F; B16F, p.2). Plaintiff’s claimed symptoms

2

being inconsistent with or not supported by the medical records is a clear and convincing

3

reason to reject her symptoms testimony (see Morgan v. Comm. Of Soc. Sec. Admin., 169

4

F.3d 595, 599-600 (9th Cir. 1999)), and is supported by the record in this case.

5

Third, Plaintiff claims the ALJ’s second reason (that Plaintiff’s daily activities are

6

inconsistent with the claimed severity of her symptoms) and fifth reason (that Plaintiff’s

7

prior work history or reasons for leaving various jobs are inconsistent with the claimed

8

severity of her symptoms) are improper reasons for finding Plaintiff not credible. (Doc.

9

14 at 21).

10

Preliminarily, Plaintiff’s daily activities can be considered in determining whether

11

her testimony regarding the severity of her symptoms is credible. See e.g., Morgan, 169

12

F.3d at 600. Additionally, Plaintiff’s work history can also be considered in determining

13

whether her testimony about the severity of her symptoms is credible. See Thomas v.

14

Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Here, Plaintiff appears to impliedly be

15

arguing that after Garrison, 759 F.3d at 1016, daily activities can no longer be considered

16

negatively against Plaintiff in determining whether Plaintiff is credible because daily

17

activities at home are done in a different environment than a work environment.

18

In this case, Plaintiff talks on the phone, uses Facebook regularly, grocery shops,

19

uses the computer, cares for ducks, geese and chickens, uses email, babysits her two

20

toddler grandchildren, independently handles her personal care, cooks, does light

21

household chores (including laundry, washing dishes, vacuuming and mopping), drives,

22

managers her family finances, and independently uses public transportation. (Doc. 11-3

23

at 44-45, 46). Plaintiff also takes walks and pulls weeds. (Id. at 44). Obviously some of

24

these activities are done in the home, and some are not.

25

Although Garrison noted that at home activities are done in a more flexible

26

environment, Plaintiff’s activities in this case are quite robust, including managing

27

finances and caring for two small children. In the second and third full paragraphs on

28

page 44 of the ALJ’s opinion, the ALJ recited Plaintiff’s testimony of severe mental and

- 11 -

1

physical limitations. The Court agrees that the limitations described by Plaintiff are

2

inconsistent with the many daily activities in which Plaintiff engages. Thus, the Court

3

finds this reason provided by the ALJ is a clear and convincing reason to not credit

4

Plaintiff’s symptom testimony.

5

Additionally, Plaintiff argues that her an inability to get along with others in a

6

workplace environment and her doctor’s suggestion that she responds inappropriately to

7

supervisors should be considered part of her disability rather than a lack of motivation to

8

work on Plaintiff’s part.

9

Plaintiff’s inability to get along with supervisors or other co-workers relates to her

10

disability. (Doc. 11-3 at 45); cf. Bayliss v. Barnhart, 427 F.3d 1211, 1217 n.3 (9th Cir.

11

2005) (noting claimant’s diagnosis with at least 5 mental disorders). Further, Plaintiff

12

stated that she has failed to look for work for transportation reasons, not disability

13

reasons. (Id.). Thus, this fifth reason given by the ALJ is clear and convincing and

14

supported by substantial evidence of record.

(Doc. 14 at 21-22).

Nothing in the record suggests that

15

Based on the foregoing, the ALJ has given five separate clear and convincing

16

reasons for not crediting Plaintiff’s subjective symptom testimony. Further, each reason

17

was supported by substantial evidence of record. Therefore, this Court will not reverse

18

the decision of the ALJ on this basis.

19

III.

Lay Witness Testimony

20

The ALJ may discount the testimony of lay witnesses only if the ALJ gives

21

reasons for discounting the testimony that are germane to each witness. Dodrill v.

22

Shalala, 12 F.3d 915, 919 (9th Cir. 1993). In this case, Plaintiff’s husband and daughter

23

each completed a questionnaire regarding Plaintiff’s symptoms.

24

Plaintiff’s son also submitted a questionnaire regarding Plaintiff’s seizures. (Doc. 11-3 at

25

49). The ALJ gave little weight to these questionnaires. (Id.). Specifically, the ALJ said

26

the reports of symptoms in the questionnaires are inconsistent with the medical

27

testimony. (Id.). Additionally, the ALJ found the questionnaires unpersuasive because

28

they answers are conclusory and do not describe Plaintiff’s symptoms. (Id.). Finally, the

- 12 -

(Doc. 14 at 23).

1

ALJ further noted that Plaintiff’s husband does not live with Plaintiff, but instead lives

2

and works in North Dakota and, thus, Plaintiff’s husband does not have the opportunity to

3

observe her symptoms on a regular basis. (Id.).

4

On appeal, Plaintiff does not claim that the ALJ’s reasons are not germane reasons

5

as to each witness to discount their lay testimony. Instead, Plaintiff argues that each

6

reason offered by the ALJ is factually inaccurate based on the record. (Doc. 14 at 23-24).

7

First, Plaintiff states without citation “these witness statements do describe Plaintiff’s

8

symptoms and are quite detailed in explaining how Plaintiff’s impairments limit her

9

ability to perform work activity.” Plaintiff offers no examples to support this assertion.

10

Based on the ALJ’s citations, the Court has reviewed the questionnaires. (Tr. 360,

11

352-359, and 317-327). The Court agrees with the ALJ that while the lay witnesses

12

answered all the questions, the answers are basically conclusory assertions, mostly

13

referencing generalized anxiety. Therefore, the Court agrees with the ALJ that the

14

witness statement do not provide adequate evidence to be helpful regarding a

15

determination of disability.

16

Next, Plaintiff argues that the husband’s questionnaire should not have been

17

discounted because he visits for two weeks every 3 to 6 months. (Doc. 14 at 23). This

18

Court agrees with the ALJ that the potential that the husband only sees Plaintiff 4 weeks

19

out of a 52 week year is a germane reason to discount his reporting of her symptoms.

20

Finally, Plaintiff argues that the ALJ was factually incorrect to conclude that the

21

lay witness statements were inconsistent with the medical evidence; specifically, Plaintiff

22

claims the ALJ did not give particularized reasons for rejecting the lay witness’s reports

23

that Plaintiff has difficulty taking criticism from supervisors.

24

Plaintiff did not cite to where in the lay witnesses’ reports any lay witnesses reported that

25

Plaintiff could not take criticism from a supervisor.1

26

hypothesize how Plaintiff’s daughter or husband would be in a position to observe her

(Doc. 14 at 23-14).

Further, the Court cannot

27
1

28

The Court did note that Plaintiff’s husband reported Plaintiff having told him
about getting written up. However, Plaintiff’s husband also reported that Plaintiff had
never been fired or laid off because she could not get along with others. (Tr. at 324).
- 13 -

1

receiving criticism from a supervisor. Nonetheless, the Court has already addressed the

2

ALJ’s rejection of certain medical testimony, and acceptance of other testimony, and

3

concluded the ALJ did not err in this regard. Thus, the ALJ’s statement that the lay

4

witness statements are not supported by the “greater objective medical evidence” is

5

accurate based on the record as a whole and the ALJ’s other findings. (Doc. 11-3 at 49).

6

Based on all of the foregoing, the Court finds the ALJ gave germane reasons for

7

discounting each of the lay witness reports. Accordingly, the ALJ did not err in this

8

regard.

9

IV.

Vocational Expert Hypothetical

10

Plaintiff also argued that the ALJ posed an incomplete hypothetical to the

11

vocational expert that was not supported by the record. (Doc. 14 at 24). Specifically,

12

Plaintiff states, “Here, in posing her hypothetical questions to the vocational expert, the

13

ALJ omitted Plaintiff’s credible allegations, those of the lay witnesses, and the limitations

14

assessed by Plaintiff’s treating and examining doctors as detailed above.” (Id.) For all of

15

the reasons stated above, this Court finds the ALJ did not err in not crediting these

16

sources. Thus, the ALJ also did not err in not including these sources’ limitations in the

17

hypothetical posed to the vocational expert.

18

V.

Conclusion

19

Based on the foregoing,

20

IT IS ORDERED that the decision of the ALJ is affirmed and the Clerk of the

21
22

Court shall enter judgment accordingly.2
Dated this 1st day of November, 2016.

23
24
25
26
27
28

2

To the extent a mandate is require, the judgment shall serve as the mandate in
this case.
- 14 -