Lenex v. Commissioner of Social Security

Filing 23

ORDER Regarding Plaintiff's Social Security Complaint 1 , signed by Magistrate Judge Barbara A. McAuliffe on 9/27/16. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMIE LYNN LENEX,

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Plaintiff

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CASE NO. 1:15-cv-00581-BAM
ORDER REGARDING PLAINTIFF’S
SOCIAL SECURITY COMPLAINT

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant

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INTRODUCTION
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Plaintiff Jamie Lenex (“Plaintiff”) seeks judicial review of a final decision of the
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Commissioner of Social Security (“Commissioner”) denying her application for disability
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insurance benefits (“DIB”) pursuant to Title II of the Social Security Act and for supplemental
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security income (“SSI”) under Title XVI of the Social Security Act. The matter is before the
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Court on the parties’ briefs, which were submitted without oral argument to Magistrate Judge
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Barbara A. McAuliffe. The Court finds the decision of the Administrative Law Judge (“ALJ”) to
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be supported by substantial evidence in the record as a whole and based upon proper legal
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standards. Accordingly, this Court affirms the agency’s determination to deny benefits.
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FACTS AND PRIOR PROCEEDINGS

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On October 22, 2012, Plaintiff filed her current applications for DIB and SSI alleging

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disability beginning September 15, 2012. AR 191-197, 198-206. Both applications were denied

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initially and upon reconsideration. AR 111-115, 126-132. Subsequently, Plaintiff requested a

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hearing before an Administrative Law Judge (“ALJ”). Following a hearing, ALJ Sharon L.

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Madsen issued a decision on January 6, 2015 denying benefits. AR 10-30. On February 9, 2015,

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the Appeals Council denied review rendering the ALJ’s decision the final determination by the

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Social Security Administration. AR 1-4. Plaintiff sought review of the ALJ’s decision, which the

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Appeals Council denied, making the ALJ’s decision the Commissioner’s final decision. AR 6-9.

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This appeal followed.

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Background

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In 1991, at age 13, Plaintiff was involved in a major motor vehicle accident in which she

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broke her knee and lower leg, a door handle was imbedded in her leg, and the growth plate of her

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left leg was broken which resulted in different leg lengths as she matured. AR 389, 399. Plaintiff

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alleges disabling symptoms of chronic back, hip, and knee pain resulting, in part, from this motor

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vehicle accident. Plaintiff also alleges disabling symptoms of depression. (Doc. 16 at 7-11).

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Hearing Testimony

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The ALJ held hearing on December 2, 2014 in Fresno, CA. AR 31. Plaintiff appeared and

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testified, along with representative Melissa Proudain and impartial Vocational Expert (“VE”)

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Thomas Dachelet. AR 33.

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In response to questions from the ALJ, Plaintiff testified that she lived with her sister,

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possessed a driver’s license, and could drive. AR 35. She said she earned an associate’s of science

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degree and was licensed to be a security guard. AR 35-36.

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showering or dressing, and she affirmed that she did household chores, including cooking, and

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shopping. AR 36. She stated she spent most of her time either cooking or watching television for

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an hour at a time. AR 36, 46. Plaintiff said that she could pay attention and follow what she

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watches on television most of the time but she alleged that at times she was “very confused.” AR

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43. Plaintiff testified that she walked her dog or cleaned for about fifteen to thirty minutes while
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Plaintiff denied needing help

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taking a break from television. AR 46. She denied that she needed help managing money,

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budgeting or paying bills. AR 44.

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When asked about her impairments, Plaintiff alleged that her medication made her sleepy,

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which required her to take a nap or rest for five hours during the day. AR 36, 44-45. She stated

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that medication dulled the pain enough to get by but that she still had pain to the extent that she

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“can’t do hardly anything.” AR 41. She complained that her back was completely in pain all the

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time, her knees go out, her legs go numb, she had shooting pain down her legs, and her hips are

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lopsided because one leg is shorter than the other. AR 39. She stated she had more problems

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when walking and could not sit for a long periods of time because of her back pain. AR 40.

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Plaintiff said she had a shoe insert, and used a cane when not at home because her balance was off.

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AR 40. Plaintiff claimed that physical therapy had not worked and that a TENS unit only worked

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on her back. AR 40-41. She denied having received any referrals to a neurosurgeon or any other

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specialist for an evaluation. AR 41.

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When asked about her abilities despite her impairments, Plaintiff testified that she could

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lift and carry five pounds, sit for fifteen to thirty minutes before needing to stand up, and stand for

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fifteen to thirty minutes before she had to sit down. AR 42. She said she could walk half a city

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block. AR 42.

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In response to questions about her mental impairments, Plaintiff alleged that due to

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depression she sometimes becomes isolated, cried for no reason, and experienced too many

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feelings at one time. AR 43. When asked about treatment, medication, and counseling, Plaintiff

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responded that she was being referred to a psychiatrist and was taking Prozac. AR 43. Plaintiff

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alleged that she stopped seeing her previous psychiatrist, Dr. Morgan, because she did not have

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insurance. AR 48. She acknowledged that Prozac helped a little bit, but she alleged that she has

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problems sometimes getting along with people and isolating herself once a week. AR 43-44.

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The ALJ asked Plaintiff to discuss her previous work history. Plaintiff described her past

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relevant work as a cashier and stocker, and in security, with about seven employers. AR 36-38.

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Following Plaintiff’s testimony, the ALJ elicited testimony from vocational expert (“VE”)

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Thomas Dachelet. AR 49. In response to a hypothetical posed by the ALJ, the VE testified that an
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individual of the same age, education and work background as Plaintiff that could lift and carry 20

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pounds occasionally, ten pounds frequently, sit six to eight hours, stand and walk four hours, with

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occasional stooping, crouching, crawling, climbing kneeling and balancing could perform the jobs

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of palletizer (DOT 929.687-054)1, garment sorter (DOT 222.687-014), and package operator

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(DOT 920.685-082), which all exist in significant numbers in the national and regional economies.

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AR 50-52.

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When the VE was examined by the Plaintiff’s attorney, the VE testified that no

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occupations exist for a person who would need an additional two to four breaks of 30 minutes per

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day. AR 52.

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Medical Record

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The entire medical record was reviewed by the Court. AR 222-450. The medical evidence

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will be referenced below as necessary to this Court’s decision.

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THE ALJ’S DECISION

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Using the Social Security Administration’s five-step sequential evaluation process, the

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ALJ determined that Plaintiff did not meet the disability standard. AR 13-26. The ALJ found

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Plaintiff had the following severe impairments: lumbar degenerative joint disease, status-post left

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knee growth-plate fracture with resultant leg length discrepancy, and morbid obesity. AR 15.

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Nonetheless, the ALJ determined that the severity of the Plaintiff’s impairments did not meet or

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exceed any of the listed impairments individually or in combination.

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Based on a review of the entire record, the ALJ determined that Plaintiff has the residual

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functional capacity (“RFC”) to perform light work with the ability to lift and carry twenty pounds

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occasionally, and ten pounds frequently, stand and walk four hours in an eight-hour day, and sit

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six to eight hours out of an eight hour day with normal breaks, and occasionally stoop, crouch,

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crawl, climb, kneel, and balance. AR 18. The ALJ found that Plaintiff could not perform any past

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relevant work, but that there were jobs that existed in significant numbers in the national economy

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that Plaintiff could still perform. AR 24. The ALJ therefore concluded that Plaintiff was not

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disabled under the Social Security Act. AR 26.

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SCOPE OF REVIEW

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Congress has provided a limited scope of judicial review of the Commissioner’s decision

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to deny benefits under the Act. In reviewing findings of fact with respect to such determinations,

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this Court must determine whether the decision of the Commissioner is supported by substantial

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evidence. 42 U.S.C. § 405 (g). Substantial evidence means “more than a mere scintilla,”

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Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v.

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Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401.

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The record as a whole must be considered, weighing both the evidence that supports and the

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evidence that detracts from the Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995

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(9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the

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proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court

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must uphold the Commissioner’s determination that the claimant is not disabled if the Secretary

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applied the proper legal standards, and if the Commissioner’s findings are supported by substantial

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evidence. See Sanchez v. Sec’y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

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REVIEW

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In order to qualify for benefits, a claimant must establish that he or she is unable to engage

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in substantial gainful activity due to a medically determinable physical or mental impairment

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which has lasted or can be expected to last for a continuous period of not less than twelve months.

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42 U.S.C. § 1382c (a)(3)(A). A claimant must show that he or she has a physical or mental

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impairment of such severity that they are not only unable to do their previous work, but cannot,

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considering age, education, and work experience, engage in any other kind of substantial gainful

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work which exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th

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Cir. 1989). The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273,

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1275 (9th Cir. 1990).

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The issues Plaintiff presents are whether the ALJ: (1) adequately developed the record; (2)

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sufficiently addressed Plaintiff’s mental impairment; (3) properly evaluated Plaintiff’s credibility,

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(4) sufficiently considered the lay source testimony; and (5) properly relied on the VE’s testimony
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to find that Plaintiff could perform work as it exists in the national economy. (Doc. 16).

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DISCUSSION
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The ALJ Fully and Fairly Developed the Record

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Plaintiff first contends that the ALJ failed to adequately develop the record regarding her

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“Complex Regional Pain Syndrome (‘CRPS’).” (Doc. 16 at 17-18). According to Plaintiff, her

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treating physician opined that her intense chronic leg and back pain was likely due to Complex

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Regional Pain Syndrome arising from the injuries she suffered in her motor vehicle accident at age

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13. (Doc. 16 at 17). Plaintiff argues that the ALJ failed to properly evaluate her CRPS, and

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instead relied on medical opinions generated prior to her CRPS diagnosis.

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An ALJ’s duty to develop the record is triggered if there is ambiguous evidence or the

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record is inadequate for proper evaluation of evidence. When such a duty is triggered, an ALJ can

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develop the record by: (1) making a reasonable attempt to obtain medical evidence from the

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claimant’s treating sources; (2) ordering a consultative examination when the medical evidence is

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incomplete or unclear and undermines the ability to resolve the disability issue; (3) subpoenaing or

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submitting questions to the claimant’s physicians; (4) continuing the hearing; or (5) keeping the

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record open for more supplementation. Tonapetyan v. Halter, 242 F.3d 1144, 1150; 20 C.F.R. §

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404.1517.

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Here, the ALJ’s duty to develop the record further was not triggered. While Plaintiff cites

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a “likely” diagnosis of chronic regional pain syndrome, made in 2013 and again in 2014, the mere

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diagnosis of an impairment is not sufficient to sustain a finding of disability. AR 19, 389, 435.

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Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (mere existence of impairment is

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insufficient proof of disability); Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). The record

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demonstrates that the ALJ considered Plaintiff’s subjective pain associated with the objective

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findings of her nonsymmetrical leg lengths, lumbar degenerative disc disease, and obesity. AR

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15-19. Based on those findings, the ALJ assessed an RFC for a reduced range of light work that

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included various postural accommodations that reflected Plaintiff’s symptoms of pain supported

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by the medical evidence. AR 18. Plaintiff has therefore not demonstrated that the record was

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inadequate with respect to her pain syndrome.
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Further, the possible diagnosis does not create ambiguity because even assuming CRPS

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was a medically determinable impairment, the record contained sufficient medical evidence for the

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ALJ to weigh and conclude that Plaintiff was not disabled. The ALJ weighed the medical

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evidence, including that of Plaintiff’s treating physician, Dr. Dorado, who declined to complete

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disability forms. AR 19, 23, 347. The ALJ also relied on the opinion of the two examining doctors

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whose opinions supported the ALJ’s finding of non-disability: Examining physician Dr. Georgis

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found Plaintiff capable of performing light work (AR 21, 344), and examining psychologist Dr.

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Swanson opined that Plaintiff had no disabling mental limitations. AR 20-21, 335. Those opinions

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were also reinforced by the opinions of the four non-examining doctors, all of whom supported the

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ALJ’s assessment of the evidence and conclusion that Plaintiff retained the RFC for a reduced

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range of light work. AR 21, 65, 90.

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Finally, despite the thorough evidentiary record, the ALJ kept the record open after the

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hearing at counsel’s request for additional medical records. AR 33, 55. Seventeen days after the

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hearing, however, counsel informed the ALJ that there were no updated records. AR 328. The fact

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that the ALJ kept the record open after the hearing for Plaintiff to submit additional evidence is

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sufficient to satisfy any duty to develop the record. Tonapetyan, 242 F.3d at 1150; Tidwell v.

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Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ’s indication to plaintiff and her counsel that he

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would keep the record open so that they could supplement her doctor’s report satisfied ALJ’s duty

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to develop the record).

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Ultimately, the ALJ did not find that the record was insufficient or inadequate to determine

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disability. Nor does Plaintiff identify any ambiguous or unclear treatment notes or medical

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opinions that would result in additional limitations. Plaintiff was further provided the opportunity

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to present additional medical records concerning her CRPS and failed to do so. For these reasons,

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the ALJ did not err in developing the record.

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2.

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The ALJ Properly Considered Plaintiff’s Depression
Plaintiff next contends that the ALJ improperly failed to consider her depression as a

severe impairment at step two of the sequential evaluation process.

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At step two, a claimant must make a threshold showing that her medically determinable
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impairments significantly limit her ability to perform basic work activities. See Bowen v. Yuckert,

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482 U.S. 137, 145 (1987); 20 C.F.R. §§ 404.1520(c), 416.920(c). “An impairment or combination

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of impairments can be found ‘not severe’ only if the evidence establishes a slight abnormality that

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has ‘no more than a minimal effect on an individual’s ability to work.’” Smolen v. Chater, 80 F.3d

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1273, 1290 (9th Cir. 1996) (quoting Social Security Ruling (SSR) 85-28, 1985 SSR LEXIS 19).

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“[T]he step two inquiry is a de minimis screening device to dispose of groundless claims.” Id.

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(citing Bowen, 482 U.S. at 153-54).

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According to Plaintiff, she was diagnosed with a major depressive disorder and prescribed

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depression medications including Prozac. AR 361. On March 29, 2013, Plaintiff’s symptoms of

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depression increased and she was diagnosed with a “recent worsening” of her “Major Depressive

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Disorder.” AR 383-84. In September 2014, Plaintiff scored 19 on the Primary Care Evaluation of

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Mental Disorders scale (a score of 15 is considered moderately severe depression) and her

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medication was again increased. AR 405, 415.

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In finding that Plaintiff’s depression was not a severe impairment, the ALJ noted that

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Plaintiff was diagnosed with depression but found that Plaintiff’s “medically determinable mental

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impairment of depression does not cause more than minimal limitation in [Plaintiff’s] ability to

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perform basic mental work activities and is therefore nonsevere.” AR 15. In support of this

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conclusion, the ALJ listed abilities and aptitudes that reflected at most mild limitations, including

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Plaintiff’s ability to attend to personal care, attend church, eat out at restaurants, drive a car, and

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her ability to pay attention for extended periods of time. AR 16; see AR 278, 288-291, 292, 293,

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335; see also AR 22-23, 24. The ALJ also explained that medication controlled Plaintiff’s

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depression and anxiety, and that Plaintiff declined further psychiatric treatment. AR 19, 23; see

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AR 347, 358, 359. The ALJ also gave great weight to the State agency psychological consultants

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who opined that Plaintiff did not have a severe mental impairment. AR 21-22.

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Here, although Plaintiff was diagnosed with depression, this alone is insufficient to warrant

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a finding of a severe impairment at step two. See Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th

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Cir.1997) (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987)) (“[T]he claimant must show more

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than the mere presence of a condition or ailment.”); see also Holaday v. Colvin, No. 2:14-cv-18708

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KJN, 2016 U.S. Dist. LEXIS 29716, 2016 WL 880971, at *12 (E.D. Cal. Mar. 8, 2016) (“The

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mere fact that plaintiff was diagnosed with such conditions is, by itself, insufficient to demonstrate

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that they were ‘severe’ for step two purposes.”); Mahan v. Colvin, 2014 U.S. Dist. LEXIS 65255,

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2014 WL 1878915, at *2 (C.D. Cal. May 12, 2014) (“[A] mere diagnosis does not establish a

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severe impairment.”). As the ALJ noted, there is no evidence that Plaintiff’s depression had any

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impact on her ability to work. See Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (an

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impairment is not severe if it is merely a slight abnormality that has no more than a minimal effect

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on one’s ability to do basic work activities). Therefore, the ALJ properly determined that

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Plaintiff’s depression did not represent a severe impairment.

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Alternatively, even if the ALJ did err in evaluating Plaintiff’s depression, the Ninth Circuit

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has ruled that, when the ALJ has resolved step two in a claimant’s favor, any error in designating

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specific impairments as severe does not prejudice a claimant at step two. See Burch v. Barnhart,

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400 F.3d 676, 682 (9th Cir. 2005) (even if ALJ erroneously failed to find an impairment “severe,”

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this error “could only have prejudiced [the claimant] in step three (listing impairment

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determination) or step five (RFC) because the other steps, including [step two], were resolved in

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her favor”). Here, the ALJ found that Plaintiff had some severe impairments and resolved step two

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in her favor. Therefore, any error in failing to find that Plaintiff’s depression is a severe

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impairment is harmless at step two.

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3.

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The ALJ Gave Sufficient Reasons to Discount Plaintiff’s Credibility
Next, Plaintiff argues that the ALJ erred in rejecting her excessive pain symptoms. (Doc.

16 at 20-23). The Court disagrees.

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A.

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A two-step analysis applies at the administrative level when considering a claimant’s

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credibility. Treichler v. Comm. of Soc. Sec., 775 F. 3d 1090, 1098 (9th Cir. 2014). First, the

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claimant must produce objective medical evidence of his or her impairment that could reasonably

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be expected to produce some degree of the symptom or pain alleged. Id. If the claimant satisfies

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the first step and there is no evidence of malingering, the ALJ may reject the claimant’s testimony

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regarding the severity of his or her symptoms only if he or she makes specific findings and

Legal Standard

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provides clear and convincing reasons for doing so. Id.; Brown-Hunter v. Colvin, 806 F.3d 487,

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493 (9th Cir. 2015); SSR 96-7p (ALJ’s decision “must be sufficiently specific to make clear to the

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individual and to any subsequent reviewers the weight the adjudicator gave to the individual’s

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statements and reasons for that weight.”). Factors an ALJ may consider include: 1) the applicant’s

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reputation for truthfulness, prior inconsistent statements or other inconsistent testimony; 2)

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

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treatment; and 3) the applicant’s daily activities. Smolen, 80 F.3d

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physician and third party testimony about the nature, severity, and effect of symptoms, and

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inconsistencies between testimony and conduct also may be relevant. Light v. Soc. Sec. Admin.,

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at 1282. Work records,

119 F.3d 789, 792 (9th Cir. 1997).

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B.

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At the first step of the credibility analysis, the ALJ found that Plaintiff’s “medically

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determinable impairments could reasonably be expected to cause the alleged symptoms.” AR 18.

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However, at the second step of the analysis, the ALJ found Plaintiff’s statements concerning the

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intensity, persistence, and limiting effects of her symptoms were not entirely credible. AR 18. In

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so doing, the ALJ provided several clear and convincing reasons for rejecting Plaintiff’s excessive

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pain testimony.

Analysis

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First, the ALJ found that Plaintiff failed to seek treatment and when treatment was

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prescribed Plaintiff missed appointments and demonstrated poor compliance with her treatment

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plan. AR 19. “[U]nexplained or inadequately explained failure to seek treatment or to follow a

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prescribed course of treatment” is a relevant factor in weighing a plaintiff’s credibility.

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Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). The ALJ considered that Plaintiff had

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refused steroid injections and had not been compliant with physical therapy. The ALJ noted that

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Plaintiff “was discharged from PT [when Plaintiff] demonstrated poor self-motivation to engage in

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strength training needed to improve trunk and core stability in order to decrease overuse of the

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erector spinae musculature.” AR 19. The ALJ also noted that Plaintiff declined psychotherapy

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and physical therapy in 2013. She declined a steroid injection in 2012…[and] she was

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noncompliant with treatment when finally engaged in two sessions of physical therapy.” AR 19.
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Although Plaintiff argues her failure to seek additional treatment was due to a lack of financial

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resources, Plaintiff failed to follow her treatment plan even when physical therapy services were

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offered to her despite her finances. Plaintiff cannot obtain benefits if she fails to follow prescribed

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treatment that would enable her to work. 20 C.F.R. § 416.930. It was not error for the ALJ to find

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that Plaintiff’s subjective complaints lacked credibility based on her failure to follow prescribed

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treatment.

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Second, the ALJ found that Plaintiff’s impairments were well maintained on medication.

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AR 19. The ALJ was entitled to reject Plaintiff’s credibility based on her successful response to

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medication. See Gerard v. Astrue, 406 Fed. Appx. 229, 232 (9th Cir. 2010) (unpublished) (ALJ

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properly discounted claimant’s asserted severity of his anxiety and depression, observing in part

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that claimant “was responding to psychotherapy and medication”); Morgan v. Apfel, 169 F.3d 595,

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599 (9th Cir. 1999) (ALJ properly discredited the claimant’s subjective complaints by citing

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physician’s report that mental symptoms improved with medication). Ample evidence

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demonstrated that medication had effectively controlled Plaintiff symptoms. The ALJ noted that

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Plaintiff reported that her pain was markedly improved with her current pain regimen. AR 19.

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Plaintiff’s depression was also noted as stable. AR 19.

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Plaintiff’s satisfactory response to medication.

It was not error for the ALJ to consider

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Third, the ALJ found Plaintiff’s daily activities contradicted her pain testimony. AR 22.

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“Even 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

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debilitating impairment.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). Here, Plaintiff’s

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daily activities included performing light housework, independently maintaining all her personal

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needs, doing some shopping, preparing meals, using public transportation, walking 3 miles daily,

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and driving. AR 23-24; see Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (Evidence of a

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claimant’s daily activities may be relevant to evaluating the credibility of a claimant’s pain

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testimony.).

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included daily care, physical activities, and interaction with others.

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The ALJ appropriately considered Plaintiff’s activities of daily living, which

The ALJ also found Plaintiff less credible because she received unemployment benefits
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and performed work activity after the alleged onset date. AR 24; see AR 207, 217-219. Continued

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receipt of unemployment benefits casts doubt on a claim of disability, as it shows an applicant

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holds himself out as capable of working. Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014);

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Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988) (ALJ validly discounted Plaintiff’s

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credibility, in part, because he “received unemployment insurance benefits [after being laid off]

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(apparently considering himself capable of work and holding himself out as available for work)”);

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but cf. Webb, 433 F.3d 683, 687-88 (9th Cir. 2005) (Ninth Circuit rejected adverse credibility

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determination where the Court found claimant not credible for having held himself out as being

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able to work during the period of alleged disability).

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While Plaintiff argues that “her attempts to work—despite her condition—should not be

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used to deny benefits,” here, the ALJ specifically noted that Plaintiff’s ability to work after her

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onset date was of particular importance because of the nature of Plaintiff’s alleged disability. The

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ALJ noted that Plaintiff’s leg length discrepancy and accompanying pain from the motor vehicle

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accident, occurring twenty years earlier, had existed for a long time and had remained unchanged.

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AR 24. The ALJ concluded that Plaintiff’s ability to work with this alleged longitudinal history of

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pain since the 1991 injury suggested that Plaintiff could work now. AR 24. Plaintiff’s ability to

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work even after her disability onset date, only supported the ALJ’s findings that the fact that

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Plaintiff’s impairments—existing over twenty years—did not prevent Plaintiff from working

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during that “time strongly suggests that it would not currently prevent work.” See Gregory v.

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Bowen, 844 F.2d 664, 666-67 (9th Cir. 1988) (ALJ properly found “that [Plaintiff’s] lengthy

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history of lower back problems did not render her disabled” where “the condition of [Plaintiff’s]

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back had remained constant for a number of years and that her back problems had not prevented

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her from working over that time”); Jourdan v. Comm’r, 426 Fed.Appx. 499, 500 (9th Cir. 2011)

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(unpublished) (among other factors, plaintiff’s ability to work for 10 years after her accident

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constituted “substantial evidence to support a conclusion that the ALJ did not arbitrarily discredit

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[her] testimony”). The Court finds that, under these circumstances, Plaintiff’s attempt to work

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was a relevant factor, supported by substantial evidence, which the ALJ properly considered in

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determining Plaintiff’s credibility.
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Given the above, the ALJ provided clear and convincing reasons that are supported by

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substantial evidence demonstrating that Plaintiff’s subjective symptom testimony was not entirely

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credible. The ALJ specifically identified what testimony she found lacked credibility and the

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corresponding evidence that undermined Plaintiff’s complaints. Lester v. Chater, 81 F.3d at 834.

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If the ALJ’s finding is supported by substantial evidence, the court “may not engage in second-

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guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Accordingly, the ALJ’s

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credibility findings are free of legal error.

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4.

The ALJ Properly Discounted Plaintiff’s Lay Witness Credibility

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Plaintiff also challenges the ALJ’s decision to reject the third party evidence from her

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family members, including her sisters, niece, and brother-in-law. (Doc. 16 at 23). Lay testimony

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as to a claimant’s symptoms is competent evidence that an ALJ must take into account, unless he

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or she expressly determines to disregard such testimony and gives reasons germane to each

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witness for doing so. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Bayliss v. Barnhart, 427

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F.3d 1211, 1218 (9th Cir. 2005) (“An ALJ need only give germane reasons for discrediting the

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testimony of a lay witness”). In rejecting lay witness testimony, the ALJ need not cite the specific

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record as long as “arguably germane reasons” for dismissing the testimony are noted, even though

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the ALJ does not “clearly link his determination to those reasons” and substantial evidence

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supports the ALJ’s decision. Lewis, 236 F.3d at 512. The ALJ also may “draw inferences logically

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flowing from the evidence.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982).

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The ALJ assessed the lay testimony as follows:

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Kim Bowles, the claimant’s sister notes the claimant cannot walk, sit, or stand for
more than 15 minutes without having to lie down due to extreme pain. She notes
the claimants medications cause insomnia.

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Brittany Bowles, the claimant’s niece, reports witnessing the claimant having
trouble walking, climbing stairs, lifting things, and laying down. She also notes her
aunt has insomnia that causes her to sleep during the day.

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Seth Bowles, the claimant’s brother-in-law notes that it is harder for the claimant to
walk, stand or sit for any length of time, and that she is constantly in pain from her
lower back to her feet. He also noted the claimant has trouble sleeping at night
without getting up and moving around.

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These opinions are given little weight, as they are lay opinions based upon casual
observation, rather than objective medical and testing. The observations of such
laypersons certainly do not outweigh the accumulated medical evidence regarding
the extent to which the claimant’s limitation can reasonably be considered severe.

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In addition, the claimant has described daily activities that are not limited to the
extent one would expect, given the complaints of disabling symptoms and
limitations. At one point or another in the record (either in forms completed in
connection with the application and appeal, in medical reports or records, in a thirdparty report, or in the claimant’s testimony), the claimant has reported the
following daily activities: walks dogs, prepares complete meals, fold clothes,
sweeps, shops, uses public transportation, can count change, reads, talks to others
on the telephone, use a computer, attend church, go out to eat. She has a license to
drive and drives. The claimant’s ability to drive shows concentration and
persistence, an ability to use hand and foot controls, an ability to turn [her] head
(say, when backing up or changing lanes), visual acuity, and an ability to deal with
the stress inherent in operation of a motor vehicle. The claimant was walking 3
miles every day in July 2014.

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Ultimately, the lay opinions noted above are unpersuasive for the same reasons that
the claimant’s own allegations do not fully persuade me, observing that they lack
substantial support from objective findings in the record, and they are incompatible
with the above reported activities of daily living.

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AR 22-23.

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A lay witness can provide testimony about Plaintiff’s symptoms and limitations. See

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Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). “Lay testimony as to a claimant’s

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symptoms is competent evidence that an ALJ must take into account, unless he or she expressly

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determines to disregard such testimony and gives reasons germane to each witness for doing so.”

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Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); see also Dodrill v. Shalala, 12 F.3d 915, 918-19

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(9th Cir. 1993). Appropriate reasons include testimony unsupported by the medical record or other

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evidence and inconsistent testimony. Lewis, 236 F.3d at 512.

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medical evidence is another such reason.” Bayliss, 427 F.3d at 1218.

Further, “inconsistency with

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Here, the ALJ provided several germane reasons for discounting the lay source testimony.

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The ALJ summarized the family members’ reports and validly explained that their statements

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were largely inconsistent with the accumulated medical evidence of record, as well as with

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allegations of total disability. AR 22-23. This alone was a germane reason to reject the lay witness

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statement. Bayliss, 427 F.3d at 1218 (“Inconsistency with medical evidence” is a germane reason

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for discounting lay witness testimony); Lewis, 236 F.3d 503, 511-12 (9th Cir. 2001) (ALJ

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reasonably discredited lay witness statements where the symptoms they described were

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undocumented in the claimant’s medical records). Second, the ALJ noted that much of the lay

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witness testimony mirrored Plaintiff’s subjective description of her alleged limitations, which the

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ALJ discounted as lacking objective support and being inconsistent with her activities of daily

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living. AR 23. The ALJ discussed Plaintiff’s activities of daily living and concluded that those

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activities of daily living did not support the degree of pain alleged by Plaintiff or the lay witness

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testimony. AR at 23-24. These are germane reasons to reject the lay witness testimony. See

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Bayliss, 427 F.3d at 1218 (“The ALJ accepted the testimony of Bayliss’s family and friends that

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was consistent with the record of Bayliss’s activities and the objective evidence in the record; he

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rejected portions of their testimony that did not meet this standard. The ALJ’s rejection of certain

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testimony is supported by substantial evidence and was not error.”). Accordingly, the Court finds

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that the ALJ’s rejection of the lay witness testimony is supported by substantial evidence and was

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not error.

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4.

Step Five Analysis

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Lastly, Plaintiff argues that the hypothetical posed to the vocational expert did not include

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her “mental impairment of depression and the side effects of her intensive pain medication

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regimen.” (Doc. 16 at 25). Plaintiff’s argument is without merit.

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Plaintiff does not argue that the hypothetical posed to the VE failed to include all the

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limitations found in the RFC, instead Plaintiff argues that because the ALJ did not include certain

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limitations in the RFC, the Step 5 analysis is flawed. Because, substantial evidence supports the

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ALJ’s RFC finding, the hypothetical posed to the VE properly encompassed all of Plaintiff’s

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limitations. Thomas, 278 F.3d at 956 (“In order for the testimony of a VE to be considered

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reliable, the hypothetical posed must include ‘all of the claimant’s functional limitations, both

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physical and mental, supported by the record”); Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir.

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2001) (“It is, however, proper for an ALJ to limit a hypothetical to those impairments that are

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supported by substantial evidence in the record”).

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Moreover, Plaintiff’s contention that the ALJ’s hypothetical to the vocational expert was
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incomplete essentially restates her argument that the ALJ improperly discredited her testimony

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regarding the limiting effects of her symptoms. Although Plaintiff argues for a different reading of

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the record, the ALJ’s interpretation of the evidence was rational and should be upheld. See

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Tommasetti, 533 F.3d at 1038. On this record, the reliance by the ALJ on the vocational expert’s

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testimony was proper.

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CONCLUSION

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Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial

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evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court

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DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social

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Security. The Clerk of this Court is DIRECTED to enter judgement in favor of Defendant

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Carolyn W. Colvin, Acting Commissioner of Social Security, and against Plaintiff Jamie Lynn

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Lenex.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 27, 2016

A. McAuliffe

UNITED STATES MAGISTRATE JUDGE

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