Moore v. Colvin
ORDER denying 18 Motion for Summary Judgment. Signed by Magistrate Judge John Johnston on 10/12/2016. (HEG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
KIMBERLY I. MOORE,
ORDER GRANTING SUMMARY
JUDGMENT IN FAVOR OF
CARLOYN W. COLVIN, Acting
Commissioner of Social Security,
Plaintiff, Kimberly I. Moore, seeks disability benefits under the Social
Security Act. After two agency hearings in which the Commissioner denied
benefits, Moore filed for review before an Administrative Law Judge (“ALJ”). The
ALJ determined that, despite her severe impairments, Moore is capable of
performing work that exists in significant numbers in the national economy and,
therefore, is not entitled to benefits. There is substantial evidence to support the
ALJ’s decision, and the decision is free from legal error. Therefore, the ALJ’s
decision is affirmed.
The district court has jurisdiction under 42 U.S.C. § 405(g). This case is
assigned to the undersigned by consent of the parties. (Docs. 7 and 8.) Venue in
the Great Falls Division of the District of Montana is proper because Ms. Moore
resides in Lewis and Clark County, Montana. 28 U.S.C. §1391(e); Local Rule
Review in this case is limited. The Court may set aside the Commissioner’s
decision only where the decision is not supported by substantial evidence or where
the decision is based on legal error. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th
Cir. 1984). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971). Substantial evidence has also been described as “more than
a mere scintilla” but “less than a preponderance.” Desrosiers v. Sec. of Health and
Hum. Services, 846 F.2d 573, 576 (9th Cir. 1988).
The district court must consider the record as a whole, weighing both the
evidence that supports and detracts from the Commissioner’s conclusion. Green v.
Heckler, 803 F.2d 528, 530 (9th Cir. 1986). The Court may reject the findings not
supported by the record, but it may not substitute its findings for those of the
Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
A claimant is disabled for purposes of the Social Security Act if the claimant
demonstrates by a preponderance of the evidence that (1) the claimant has a
“medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than twelve months”; and (2) the impairment or impairments are
of such severity that, considering the claimant’s age, education, and work
experience, the claimant is not only unable to perform previous work, but also
cannot “engage in any other kind of substantial gainful work which exists in the
national economy.” Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 974
(9th Cir. 2000) (citing 42 U.S.C. §1382(a)(3)(A)-(B)).
To determine whether a claimant is disabled for purposes of the Social
Security Act, an Administrative Law Judge (ALJ) follows a five-step process. 20
C.F.R. § 404.1520(a). The claimant bears the burden of proof at the first four
steps, but the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999).
At the first step, the ALJ determines whether the claimant is engaging in
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is
not disabled and the inquiry ends. Id. At step two, the ALJ determines whether
the claimant has a “severe” medically determinable physical or mental impairment.
20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry
ends. Id. At step three, the ALJ considers whether the claimant’s impairment or
combination of impairments meets or medically equals an impairment listed in
Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. 20 C.F.R. § 404.1520(a)(4)(iii). If
so, the ALJ automatically finds the claimant disabled. Id. If not, the ALJ proceeds
to step four. At step four, the ALJ assesses the claimant’s residual functional
capacity and determines whether the claimant is still capable of performing past
relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled
and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where
he determines whether the claimant can perform any other work based on the
claimant’s residual functional capacity, age, education, and work experience. 20
C.F.R. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the
claimant is disabled. Id.
Moore applied for disability benefits on June 2, 2011, alleging that she had
been disabled since January 1, 2009. (Tr. 151.) The Social Security
Administration (“SSA”) denied her claim on June 26, 2012, and again denied her
claim upon reconsideration on November 21, 2012. (Tr. 11.)
Moore requested a hearing with an ALJ on December 13, 2012. (Tr. 11.)
The hearing was conducted on February 25, 2014. (Tr. 11.) Moore, present with
counsel, testified in front of the ALJ at the hearing. (Tr. 40-101.) The ALJ found
Moore had not been under a disability within the meaning of the SSA’s regulations
and did not qualify for benefits. (Tr. 11-26.) On August 25, 2015, the Appeals
Council denied review of the ALJ decision, making the ALJ’s decision final. (Tr.
Moore timely filed this action on October 26, 2015, seeking judicial review
of the denial of her claim. (Doc. 2). Both parties have fully briefed the claim.
(Docs. 18 and 19.)
At step one, the ALJ determined that Moore has not engaged in substantial
gainful activity since her alleged disability onset date. (Tr. 14.) At step two, the
ALJ found that Moore has the following severe impairments: obesity, degenerative
disc disease, bipolar disorder, posttraumatic stress disorder, and borderline
personality disorder. (Tr. 13.) At step three, the ALJ determined that Moore’s
impairments do not establish a disability under the Listing of Impairments. (Tr. 13,
15.) At step four, the ALJ found that Moore is unable to perform past relevant
work. (Tr. 24.)
At step five, the ALJ found that Moore has the residual functional capacity
to perform other work that exists in significant numbers in the national economy.
Namely, the ALJ used the vocational expert testimony to determine that Moore
would be able to perform the requirements of a representative work such as
marker, routing clerk, lab sample carrier, cleaner/housekeeper, escort vehicle
driver, inspector, or production worker. (Tr at 25.)
Moore asks the Court to reverse the Commissioner’s decision and to remand
with instructions for payment of benefits. (Doc. 18 at 30.)
Moore argues that the Commissioner’s decision is not supported by
substantial evidence. Moore asserts that the ALJ erred by:
giving insufficient weight to the medical expert’s opinion regarding
her impairments and whether the impairments met or equaled a listing;
giving insufficient weight to the treating physician’s opinion that she
could not work full time or the treating therapists’ opinions that she
could not work at all;
finding her subjective complaints of pain and other symptoms not
credible without giving clear and convincing reasons supported by the
finding her subjective complaints about her inability to perform daily
activities not credible, despite the record indicating that her activities
were very limited and thus far less than meeting requirements for
sustained work activity;
giving insufficient weight to the statements of lay witnesses;
finding her residual functional capacity to be higher than the record
“The findings of the Secretary as to any fact, if supported by substantial
evidence, shall be conclusive.... ” Mayes v. Massanari, 276 F.3d 453, 458 (9th Cir.
2001). A court must affirm the findings of fact if they are supported by “substantial
evidence” and if the proper legal standard was applied. Id. at 459. Whether
substantial evidence supports a finding is determined from the record as a whole,
with the Court weighing both the evidence that supports and the evidence that
detracts from the ALJ’s conclusion. Id. When the evidence can rationally be
interpreted in more than one way, the Court must uphold the Commissioner’s
This Court first addresses Moore’s argument that the ALJ erred by not
giving lay witness testimony sufficient weight. The ALJ reasonably discredited the
testimony of lay witnesses. If the ALJ relies on such “relevant evidence as a
reasonable mind might accept as support to the conclusion,” it should not be
overturned. Valentine v. Comm’r SSA, 574 F.3d 685, 689 (9th Cir. 2009). An ALJ
must only give germane reasons for discrediting the testimony of lay witnesses.
Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Testimony given that
conflicts with medical evidence is germane and sufficiently discredits lay
Ms. Moore’s aunt testified on behalf of Ms. Moore’s claim for benefits. The
ALJ held that, besides not being medically trained to make exacting observations
pertaining to Moore’s alleged disability, the aunt’s testimony proved inconsistent
with a preponderance of opinions and observations by medical doctors on the
record as a whole. (Tr. 23.) Additionally, the ALJ determined that testimony of
Moore’s aunt, who is also her roommate, cannot be given much weight because she
is not a disinterested party. (Id.)
Even if the testimony of the lay witness could be interpreted in more than
one way, this Court must uphold the Commissioner’s position because the
testimony of the lay witness and the medical opinions are inconsistent. When lay
witnesses and medical testimony give contrary testimony, the ALJ can opt to
discredit the lay witness testimony. Bayliss, 427 F.3d at 1218. Moreover, in light
of this determination, Moore’s argument that the ALJ’s refusal to consider lay
witness testimony that was submitted after the hearing will not be considered. (See
Doc 18 at 28.)
Clear and convincing medical evidence supported the ALJ’s finding that Ms.
Moore’s testimony regarding her back problems was not credible. The ALJ’s
determination to discredit Moore’s testimony about her mental impairments was
likewise supported by specific, clear and convincing evidence. The ALJ properly
weighed the testimony of the conflicting medical opinions in making his findings.
The ALJ is not required to believe pain testimony and may disregard it if
there are no objective medical findings which “could reasonably be expected to
cause some pain.” Dodrill v. Shalala, 12 F.3d 915, 917 (9th Cir. 1993). Here,
there was evidence of an impairment, degenerative disk, that could reasonably be
expected to cause some pain. The ALJ could not disregard Moore’s testimony as to
the severity without “clear and convincing” reasons supported by specific
findings.1 Id. at 918.
The ALJ did not find credible the claim that the pain was severe enough to
render Moore disabled. The ALJ found Moore’s allegations of severe impairments
caused only “mild restrictions.” (Tr. 15.) The ALJ states that Moore’s alleged
symptoms are not entirely credible for a number of reasons. The issue is whether
the ALJ gave clear and convincing reasons supported by specific findings for
partial rejection of Moore’s testimony that her symptoms were severe enough to
If there is evidence of malingering, the Commissioner does not need “clear and
convincing” reasons to reject the testimony. Dodrill, 12 F.3d at 917 (citing Fair, 885
F.2d at 601).
preclude all work.
One reason the ALJ gave for partially discounting Moore’s credibility was
evidence that Moore exaggerated her limitations. In support of this reason, the
ALJ made specific findings, including the following: (1) Moore performs activities
of daily living, (Tr. 18); (2) Moore raises her child, a toddler, as the primary
caregiver, (Tr. 21); (3) Moore attends parenting classes, drives, and shops in stores.
(Tr. 18-19) (These activities are also referenced as evidence inconsistent with
Moore’s alleged mental impairments.); (4) The medical records do not indicate that
the degenerative disc has deteriorated or become problematic enough to cause
disabling symptoms or limitations. (Tr. 19.)
The ALJ cites a number of medical records to support the finding that the
disc deterioration has not rendered Moore disabled. First, the ALJ notes an MRI
from 2009 that showed normal vertebral bodies and a neural arch. The MRI
indicated mild dessication, modest annular bulge that slightly touched the thecal
sac without compromise, and annular bulge that raised question of annular tear (not
unusual in Moore’s age group). (Tr. 19) (citing Ex. 3F/1.) More recent x-rays and
an MRI do not conflict with the earlier diagnosis. The examinations did not
indicate any acute abnormalities or noteworthy degenerative changes. (Tr. 18.)
(citing Exs. 29F/1; Ex. 3F/1; Ex. 3F/2; Ex. 29F/46.) Basic assessments of sensation
and reflexes indicated normalcy in upper and lower extremities. (Tr. 18) (citing
Exs. 24F/1; 26F/2.)
Additionally, The ALJ gave weight to the opinions of the State Agency
medical consultants, Dr. Fernandez and Dr. Schofield. These doctors opined that
Moore could perform light work, frequently balance, crouch, kneel, and climb
ramps and stairs. (Tr. 20) (citing Exs. 5A/8; 6A/8; 9A/10; 10A/10). The ALJ
found that these assessments proved consistent with the objective medical
evidence. (Tr. 21.) The ALJ possesses discretion to give little weight to claimant
testimony when inconsistent with medical records.
The ALJ supports his decision that Moore’s physical impairment did not
render her disabled with substantial evidence. The ALJ did not commit legal error
in making this determination.
The ALJ must engage in a two-step analysis to determine whether a
claimant’s testimony regarding subjective symptoms is credible. Garrison v.
Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). “In general, the extent to which an
individual’s statements about symptoms can be relied upon as probative evidence
in determining whether the individual is disabled depends on the credibility of the
statements.” Social Security Ruling (SSR) 96-7p, available at 1996 WL 371486 at
The ALJ should first determine whether the claimant has presented objective
medical evidence of an underlying impairment “which could reasonably be
expected to produce the pain or other symptoms alleged.” Garrison v. Colvin, 759
F.3d 995 at 1014. For this determination, the claimant need not produce objective
medical evidence of symptoms or severity of the symptoms. Id.
The second step requires the ALJ to evaluate the extent to which the severity
and intensity of the symptoms would limit the claimant’s capacity for work. See 20
C.F.R. § 404.1529(c). At step two of the analysis, the ALJ can reject the claimant’s
testimony about the severity of her symptoms only by offering clear and
convincing reasons for doing so. Id.
In this case, the ALJ discounted Moore’s credibility regarding the extent to
which her mental impairments limited her capacity for work with clear and
convincing reasons. Moore testified that she suffered from depression and mania,
with the depression being more significant. (Tr. 31.) Moore also testified that her
bipolar medications, Trileptal and Venlafaxine, only help to a certain degree.
Moore testified to being hospitalized for a suicide attempt in 2011. She also
claimed that her anxiety and bipolar made her antisocial and uncomfortable around
Moore testified to doing dishes and laundry on occasion and spending most
of her day watching her baby. Moore’s testimony indicated that she was able to,
on occasion, attend appointments and run errands on her own. Moore testified that
trips to Wal-Mart were sometimes cut short because panic attacks induced by
social anxiety would cause her to have to sit in the car while her aunt finished the
shopping. (Tr. 60.) Moore testified that similar anxiety has caused canceling of
appointments with state agencies. (Tr. 67.)
Despite the testimony that might indicate a capacity for some work, Moore
testified that work itself was a major cause of her debilitating depression because it
disproportionately increased her social anxiety. (Tr. 49.) Moore expressed
concern that, specifically, work-related social-anxiety and depression caused
disassociation and suicidal ideations that were completely out of her control.
The ALJ found that Moore’s subjective complaints proved inconsistent with
her history and daily activities. Based on those inconsistencies, the ALJ made a
determination that negatively impacted Moore’s credibility. The ALJ focused on the
fact that Moore was able to twice drive cross country. Moore made one of the trips
by herself. (Tr. 19-21.) The ALJ also cited Moore’s testimony about her capacity
for daily activities as inconsistent with her claims. (Tr. 21.) Additionally, the ALJ
cited the record that indicated Moore did much better when taking her medications.
The ALJ’s use of evidence about Moore’s history and the fact that the medical
record indicates Moore functions at a higher level when on her medications
provides clear and convincing reasons for discrediting her testimony about the
severity of her symptoms.
Dr. Atkin, a neuro-psychologist, testified on Moore’s behalf and stated that,
after having read through the files and examinations, he felt that Moore
demonstrated the tendencies to decompensate in a manner that would qualify as
work-limiting. (Tr. 102-15.) Dr. Atkin specifically noted that a lack of
hospitalizations or prolonged treatment did not discredit a tendency to
decompensate. (Tr. 111-12.) Dr. Atkin felt that the living situation with her aunt and
having almost all of her daily needs attended to provided the structure and support
necessary to abate further decompensation. (Tr. 109-11.) Dr. Atkin stated that even
“minimal increase in mental demands or change in the environment would be
predicted to cause [Moore] to decompensate.” (Tr. 111.) Atkin also pointed to
Moore’s “running off to Virginia” as a specific example of the impulsive behavior
set in motion by a lack of structure and support indicative of this tendency. (Tr. 106
The ALJ gave specific, clear and convincing reasons for giving little weight
to the testimony of Dr. Atkin. The ALJ stated that nothing in the record
demonstrated Moore’s tendency to decompensate because Moore had no episodes
of decompensation during the dates at issue. (Tr. 22.) The ALJ pointed specifically
to Moore’s twice crossing the country by car, once alone, as evidence that Moore
had showed no history of medically classifiable decompensation. (Tr. 16.) Dr.
Atkin’s testimony also proved inconsistent with the medical opinions of the State
Agency psychological examiners.
The ALJ acknowledges the severity of a suicide attempt in August 2011. (Tr.
20.) The ALJ notes, however, that Moore had been off of her medications for a
month, which is consistent with medical testimony that Moore functions well when
on her medications. Additionally, a suicide attempt does not meet the SSA’s
definition of decompensation. (Tr. 21.) A fight with an abusive boyfriend caused
the episode, and Moore admits that he has made no contact in the over two years
since she has lived in Montana. (Tr. 59.)
The ALJ gave little weight to the testimony of Kim Jones, one of Moore’s
treatment providers. Specifically, the ALJ noted that Ms. Jones was not an
“acceptable medical source” under the SSA’s regulations. See 20 C.F.R. §
404.1513(a); 20 C.F.R. § 404.1531(d)(1). The ALJ thus treated the testimony of
Ms. Jones as that of a lay witness, and, as stated above, the ALJ need only provide
germane reasons for discounting the testimony of a lay witness. Testimony that
conflicts with medical testimony provides rational reasoning for discrediting a lay
witness. In this case, the testimony of Ms. Jones conflicted with the testimony of the
State Agency medical consultants.
The ALJ gave more weight to the testimomy of Drs. Bateen and Herman , the
State Agency psychological consultants. Their opinions indicated that Moore
should be able to complete simple tasks and perform in a work setting. The ALJ
points out that these opinions are consistent with Moore’s residual functional
capacity. (Tr. 21.)
The ALJ has provided specific, clear and convincing evidence as to the
decision to discredit Moore’s testimony. Additionally, the ALJ possessed the
discretion to determine how to weigh medical evaluations concerning the severity
of Moore’s mental impairments. The ALJ gave clear and convincing reasons for
giving more weight to that of the state medical examiners.
The ALJ’s hypothetical limitations provided to the
vocational expert were reasonable.
Moore argues that the ALJ erred by relying on a vocational consultant’s
testimony that did not include all of her limitations. Specifically, Moore argues that
the ALJ erred by providing the vocational expert with incorrect hypothetical
information, including an incorrect residual functional capacity. Moore alleges the
ALJ incorrectly discredited or gave insufficient weight to the following: her own
subjective testimony about her limitations; the testimony of Dr. Atkin, who gave
consistent testimony that indicated diagnosable decompensation; and the testimony
of her treatment provider, Kim Jones, that was consistent with the subjective
symptoms of Moore’s mental impairments.
The determinations given to the vocational expert for use in assessing the
residual functional capacity were based on substantial evidence in the record and
were not based on legal error. The ALJ provided the vocational expert with findings
derived from the medical testimony provided by the state examiners. Moore’s
argument that the ALJ provided the vocational expert with a residual functional
capacity that was not supported by the record falls short. Thus, the vocational
experts determination that work exists in sufficient number in the national economy
that Moore could perform was not legal error.
Reversal and Remand
Before the Court may remand a case to the ALJ with instructions to award
benefits, the Court must determine whether: (1) the record has been fully developed
and further administrative proceedings would serve no useful purpose; (2) the ALJ
has failed to provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; and (3) if the improperly discredited
evidence were credited as true, the ALJ would be required to find the claimant
disabled on remand. Burrell, 775 F.3d at 1141.
Here there would be no benefit in further proceedings because the transcript
includes all of the necessary diagnostic information. Further proceedings would
serve no useful purpose. However, the plaintiff has not met her burden of proving
that the ALJ failed to provide legally sufficient reasons for rejecting evidence. The
ALJ acted within his discretion in rejecting Moore’s testimony. The ALJ provided a
vocational expert with the determined residual functional capacity based on the
findings from the entire record.
This Court must affirm the decision of the ALJ when the ALJ relies on such
relevant evidence as a reasonable mind might accept as support to the conclusion.
The Commissioner determined that Moore is not disabled within the meaning
of the Social Security Act and, therefore, is not entitled to disability benefits. The
ALJ provides specific, clear and convincing evidence to support the decision. This
Court finds the ALJ provided substantial evidence for the decision
and did not make any legal error.
Therefore, IT IS HEREBY ORDERED:
Plaintiff’s Motion for Summary Judgment, (Doc. 18) , is DENIED.
The Commissioner’s final decision is AFFIRMED.
The Clerk of Court shall enter judgment in favor of CAROLYN W.
DATED this 12th day of October 2016.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?