Moffitt v. Astrue
Filing
20
OPINION AND ORDER. Ms. Moffitt fails to show that the ALJ erroneously evaluated her testimony and that of the lay witnesses. The ALJs decision is based upon the record and correct legal standards and is therefore AFFIRMED. Signed on 12/18/12 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JACKLYN MOFFITT,
1:11-cv-03140-MO
Plaintiff,
OPINION AND ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MOSMAN, J.,
Jacklyn Moffitt challenges the Commissioner’s decision denying her claim for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). I have jurisdiction under
42 U.S.C. § 405(g) and now AFFIRM the Commissioner’s decision.
BACKGROUND
I.
Procedural Background
On March 11, 2008, Ms. Moffitt filed for DIB and SSI under Title II and Title XVI of the
Social Security Act, claiming disability beginning on March 2, 2006. (Admin. R. (“AR”) 1 [16-3]
at 18.) The initial request was denied on June 13, 2008, and upon reconsideration on October 28,
1
Citations “AR” refer to the indicated pages in the official transcript of the administrative record filed by the
Commissioner on May 21, 2012 [16].
1 – OPINION AND ORDER
2008. (Id. [16-3].) Ms. Moffitt requested a hearing and Administrative Law Judge (“ALJ”)
Gerardo Mariani held a hearing on February 22, 2010. (Id. [16-3] at 18, 27.) On March 22, 2010,
the ALJ issued his decision denying Ms. Moffitt’s claim. (Id. [16-3] at 27.) The ALJ found Ms.
Moffitt was not disabled for DIB and SSI purposes from the alleged onset date of March 2, 2006
through the date of his decision. (Id. [16-3] at 18.) The Appeals Council denied review on
September 21, 2011, making the ALJ decision the final decision of the Commissioner of Social
Security in this case. (Id. [16-3] at 1.) On November 21, 2011, Ms. Moffitt filed a complaint [2]
in this Court pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision.
II.
Disability Analysis
The Commissioner engages in a sequential process encompassing between one and five
steps to determine disability under the meaning of the Act. 20 C.F.R. §§ 404.1520; 416.920;
Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At step one, the ALJ determines if the claimant is performing substantial gainful activity.
If he is, the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i); 416.920(a)(4)(i). At step
two, the ALJ determines if the claimant has “a severe medically determinable physical or mental
impairment” that meets the twelve-month durational requirement. If the claimant does not have
such a severe impairment, he is not disabled. 20 C.F.R. §§ 404.1509; 404.1520(a)(4)(ii);
416.909; 416.920(a)(4)(ii).
At step three, the ALJ determines whether the severe impairment meets or equals an
impairment “listed” in the Commissioner’s regulations. If it does, the claimant is disabled. 20
C.F.R. §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii).
If adjudication proceeds beyond step three, the ALJ must first evaluate medical and other
2 – OPINION AND ORDER
relevant evidence in assessing the claimant’s residual functional capacity (“RFC”). The
claimant’s RFC is an assessment of work-related activities the claimant may still perform on a
regular and continuing basis, despite limitations imposed by his impairments. 20 C.F.R. §§
404.1520(e); 404.920(e); Social Security Ruling (“SSR”) 96–8p.
At step four, the ALJ uses this information to determine if the claimant can perform his
past relevant work. If the claimant can perform his past relevant work, he is not disabled. 20
C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the ALJ finds that the claimant’s RFC
precludes performance of his past relevant work, the ALJ proceeds to step five.
At step five, the Commissioner must determine if the claimant is capable of performing
work existing in the national economy. If the claimant cannot perform such work, he is disabled.
20 C.F.R. § 404.1520(a)(4)(v); Yuckert, 482 U.S. at 142; Tackett, 180 F.3d at 1099.
The initial burden of establishing disability rests upon the claimant. Yuckert, 482 U.S. at
146 n. 5; Tackett, 180 F.3d at 1098. If the sequential disability analysis reaches the fifth step, the
burden shifts to the Commissioner to show that “the claimant can perform some other work that
exists in ‘significant’ numbers in the national economy, taking into consideration the claimant’s
residual functional capacity, age, education, and work experience.” Tackett, 180 F.3d. at 1100
(quoting 20 CFR § 404.1560(b)(3)). If the Commissioner meets this burden the claimant is not
disabled. 20 C.F.R. §§ 404.1520(g); 416.920(g); Tackett, 180 F.3d at 1099.
III.
ALJ’s Findings
The ALJ applied the five-step sequential process in determining whether Ms. Moffitt
qualified as disabled. At step one, the ALJ found Ms. Moffitt had not engaged in substantial
gainful employment since the alleged onset date, March 2, 2006. (AR [16-3] at 20.) At step two,
he concluded Ms. Moffitt had the following severe impairments: epilepsy, depression, and
3 – OPINION AND ORDER
anxiety. (Id. [16-3].) Continuing to step three, the ALJ found Ms. Moffitt’s severe impairments
did not meet or medically equal one of the listed impairments in the Commissioner’s regulations.
(Id. [16-3].) Between steps three and four, the ALJ then assessed Ms. Moffitt’s RFC. (Id. [16-3]
at 22–25.) He found that Ms. Moffitt had the RFC to perform medium work as defined in 20
C.F.R. § 404.1567(c) and § 416.967(c), with the following exception: Ms. Moffitt is “limited to
never climbing ladders, ropes, or scaffolds. [She] should avoid all exposure to hazards and she is
able to understand, remember, and carry-out simple routine tasks and she is limited to occasional
public interaction.” (Id. [16-3] at 22.) At step four, through the testimony of a Vocational Expert
(“VE”), the ALJ determined Ms. Moffitt was able to perform past relevant work as a bakery
worker. (Id. [16-3] at 25.) The ALJ found that work does not require the performance workrelated activities precluded by Ms. Moffitt’s RFC. (Id. [16-3].) Because Ms. Moffitt could
perform past relevant work, she was not disabled.
In the alternative, the ALJ also made findings at step five. The ALJ asked the VE whether
jobs exist in significant numbers in the national economy for an individual with Ms. Moffitt’s
age, education, work experience, and RFC. (Id. [16-3] at 26.) The VE testified that, given those
factors, Ms. Moffitt would be able to work as a laundry worker, wire sorter, and assembler,
which are jobs that exist in significant numbers in Oregon and in the national economy. (Id. [163].) Therefore, the ALJ also found that even if Ms. Moffitt could not perform past relevant work,
she could perform work in the national economy. (Id. [16-3] at 25.)
In sum, relying on the VE’s testimony that Ms. Moffitt could return to her past relevant
work and, in the alternative, that she could perform work in the national economy, the ALJ
concluded Ms. Moffitt was not disabled from March 2, 2006, through the date of the ALJ’s
decision. (Id. [16-3] at 25, 27.)
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IV.
Standard of Review
I review the ALJ’s decision to ensure that the ALJ applied the proper legal standards and
that the ALJ’s findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g);
Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). “‘Substantial
evidence’ means more than a mere scintilla, but less than a preponderance; it is such relevant
evidence as a reasonable person might accept as adequate to support a conclusion.” Lingenfelter
v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880,
882 (9th Cir. 2006)). The ALJ’s decision must be upheld if it is a rational interpretation of the
evidence, even if there are other possible rational interpretations. Burch v. Barhhart, 400 F.3d
676, 679 (9th Cir. 2005). The reviewing court may not substitute its judgment for that of the
ALJ. Robbins, 466 F.3d at 882.
DISCUSSION
Ms. Moffitt challenges the ALJ’s conclusion that she was not disabled from March 2,
2006, through the date of the ALJ’s decision. Specifically, she claims that the ALJ incorrectly
assessed her RFC because he improperly discredited her testimony and that of two lay
witnesses. 2 (Pl. Br. [18] at 5, 9.) She seeks a reversal of the Commissioner’s denial of her claim
or, in the alternative, a remand to the Social Security Administration. (Id. [18] at 12–13.)
I.
Claimant’s Testimony
Ms. Moffitt asserts that the ALJ erroneously evaluated her credibility. (Id. [18] at 5.) She
argues that the ALJ rejected her testimony “for reasons that are not entirely clear from
2
It appears that Ms. Moffitt also disputes the ALJ’s finding at step five (Pl. Br. [18] at 5.) She
states the ALJ found that she “could not perform past relevant work but [she] could perform
substantial gainful activity in jobs existing in significant numbers in the national economy.” (Id.
[18].) I note that Ms. Moffitt’s description of the ALJ’s finding is incorrect. Contrary to Ms.
Moffitt’s assertion, the ALJ determined that she could perform past relevant work. (AR [16-3] at
25.)
5 – OPINION AND ORDER
the ALJ’s decision.” (Id. [18] at 8.) She also claims that the ALJ failed to comply with SSR 967p. (Id. [18] at 6.) The Commissioner responds that the ALJ provided several reasons to discredit
Ms. Moffitt’s testimony and that Ms. Moffitt does not explain how the ALJ failed to comply with
SSR 96-7p. (Def. Br. [19] at 6–8.) For the following reasons, I agree with the Commissioner and
uphold the ALJ’s credibility findings of the claimant Ms. Moffitt.
A.
Claimant Credibility Standards
The ALJ must consider all symptoms and pain which “can be reasonably accepted as
consistent with the objective medical evidence and other evidence.” 20 C.F.R. §§ 404.1529(a);
416.929(a). Once a claimant shows an underlying impairment which may “reasonably be
expected to produce pain or other symptoms alleged,” absent a finding of malingering, the ALJ
must provide “clear and convincing” reasons for finding a claimant not credible. Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citing Smolen v. Chater, 80 F.3d 1273, 1281–82
(9th Cir. 1996)).
The ALJ’s credibility findings must be “sufficiently specific to permit the reviewing
court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.” Orteza v.
Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th
Cir. 1991) (en banc)). The ALJ must specifically identify “what testimony is not credible and
what evidence undermines the claimant’s complaints.” Parra v. Astrue, 481 F.3d 742, 750 (9th
Cir. 2007) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). This court does not
engage in second-guessing if the ALJ’s credibility finding is supported by substantial evidence in
the record. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
The ALJ may consider objective medical evidence and the claimant’s treatment history,
as well as the claimant’s daily activities, work record, and observations of physicians and third
6 – OPINION AND ORDER
parties with personal knowledge of the claimant’s functional limitations. Smolen, 80 F.3d at
1284. The ALJ may additionally employ ordinary techniques of credibility evaluations, such as
weighing the claimant’s inconsistent statements regarding symptoms. Id. The ALJ may not,
however, make negative credibility findings “solely because” the claimant’s symptom testimony
“is not substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin.,
466 F.3d 880, 883 (9th Cir. 2006).
B.
Analysis
In this case, the ALJ found that Ms. Moffitt’s medically determinable impairments could
reasonably be expected to produce the alleged symptoms, but her statements concerning the
intensity, persistence, and limiting effect of these symptoms were not credible. (AR [16-3] at 23.)
Therefore, “[a]fter careful consideration of the entire record,” the ALJ found that Ms. Moffitt
had the RFC to perform medium work as defined by the administrative regulations. (Id. [16-3] at
22.)
At the hearing, Ms. Moffitt first testified that she has grand mal seizures one to two times
a month. (Id. [16-3] at 39.) She later testified that she has grand mal seizures one to three times a
month. (Id. [16-3] at 40.) She also claimed that she has petit mal seizures three to five times a
week. (Id. [16-3].) She stated that she experiences panic attacks and anxiety as “side effects” of
the seizures. (Id. [16-3] at 41, 43.) To this end, she explained that the only time she experiences
panic and anxiety is when she thinks she is going to have a seizure. (Id. [16-3] at 42.) Further,
she stated that she does not believe she has depression. (Id. [16-3].) Regarding medication for her
symptoms, Ms. Moffitt testified that she takes an anti-seizure medication twice a day, but takes
no medication for anxiety, panic disorder, or depression. (Id. [16-3] at 40, 41–42.)
The ALJ summarized Ms. Moffitt’s allegations of her alleged symptoms as: “[s]he has
7 – OPINION AND ORDER
panic attacks and grand mal seizures one to three times a month. She had petit mal seizures three
to fives times a week. She takes [medication] for seizure disorder. She has anxiety and panic
disorder, but she does not receive treatment or medication.” (Id. [16-3] at 23.) The ALJ relied on
Ms. Moffitt’s testimony and reports in the record. (Id. [16-3].) Additionally, the ALJ found that
Ms. Moffitt alleged numerous complaints related to her epilepsy, including panic, drowsiness,
depression, and fear of having a seizure. (Id. [16-3].)
The objective medical evidence and treatment history greatly differed from Ms. Moffitt’s
testimony of her symptoms. On March 9, 2006, Ms. Moffitt was seen at Rogue Valley Medical
Center and was given an impression of syncope. (Id. [16-3], [16-8] at 266.) On November 11,
2007, Ms. Moffitt returned to Rogue Valley Medical Center and was diagnosed with a new onset
of seizure. (Id. [16-3] at 23, [16-8] at 274.) On November 28, 2007, Dr. Walter G. Carlini, a
neurologist, examined Ms. Moffitt for her chief complaint of seizures and prescribed non-seizure
medication to her. (Id. [16-3] at 23–24, [16-8] at 298.) On May 20, 2008, Dr. Daniel A. Saviers
examined Ms. Moffitt and she informed him that she had two seizures from January 2008 to May
2008. (Id. [16-3] at 24, [16-8] at 303.) On October 7, 2008, Dr. Edwin E. Pearson also examined
Ms. Moffitt. (Id. [16-3] at 24.) During this examination, Ms. Moffitt told Dr. Pearson she had
“perhaps” four seizures from May 2008 to October 2008. (Id. [16-3], [16-8] at 317.)
Based on the record, the ALJ found Ms. Moffitt not credible because the objective
medical evidence described above did not support “the degree or frequency of limitation alleged
as to preclude all work.” (Id. [16-3] at 23.) In his opinion, ALJ carefully outlined Ms. Moffitt’s
medical history, which showed that she had seizures less often than she claimed in her testimony.
For example, the ALJ explained that “[t]he evidence of [Ms. Moffitt] having only two seizures
from January 2008 through May 2008 is contradictory to [her] testimony that she has two to
8 – OPINION AND ORDER
three grand mal seizures a month and about five petit mal seizures a week.” (Id. [16-3] at 24.)
Similarly, the ALJ stated that Ms. Moffitt’s statements to Dr. Pearson of “perhaps” four seizures
from May 2008 to October 2008 was “also inconsistent with [her] allegations of having two to
three grand mal seizures a month and about five petit mal seizures a week.” (Id. [16-3] at 24–25.)
I agree that this objective medical evidence—including statements made by Ms. Moffitt to her
physicians during medical examinations—was inconsistent and contradictory to Ms. Moffitt’s
testimony of experiencing multiple seizures a week. (Id. [16-3] at 23–24.) The ALJ also took
notice of Ms. Moffitt’s admission that she does not receive mental health treatment or therapy or
take medication for depression or anxiety, which appears to contradict her earlier complaints of
anxiety and depression. (Id. [16-3] at 23, 25.) Accordingly, I find the ALJ proffered specific,
clear, and convincing reasons for discrediting Ms. Moffitt’s testimony. See Burch v. Barnhart,
400 F.3d 676, 680–81 (9th Cir. 2005) (ALJ properly discredited testimony based on daily living
activities, objective medical evidence, and consistent lack of treatment); Johnson v. Shalala, 60
F.3d 1428, 1434 (9th Cir. 1995) (ALJ properly discredited testimony where the ALJ identified
contradictions between the claimant’s testimony and the relevant medical evidence and
contradictions within the claimant’s own testimony).
In any event, where an ALJ provides some reason for discrediting testimony but that
reason alone is insufficient, the error is harmless as long as there is “‘substantial evidence
supporting the ALJ’s conclusions on . . . credibility’ and the error ‘does not negate the validity of
the ALJ’s ultimate [credibility] conclusion.’” Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d
1155, 1162 (9th Cir. 2008) (alterations in original) (quoting Batson v. Comm’r of Soc. Sec.
Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)). In other parts of the ALJ’s decision, the ALJ
described Ms. Moffitt as having mild restriction in activities of daily living. (AR [16-3] at 21.)
9 – OPINION AND ORDER
The ALJ noted that she experienced moderate difficulty with concentration, persistence, or pace,
but also stated that her psychological consultative examination indicated that “she was
adequately attentive to hygiene,” “completely oriented,” “shopped in stores for clothes and food
once a week,” and “was able to pay bills, count change, handle a savings account, and use a
checkbook/money order.” (Id. [16-3].) The ALJ also referenced an Adult Third Party Function
Report, which stated that Ms. Moffitt “woke up, took her medications, ate breakfast, watched
television, did chores, ate dinner, and went to bed.” (Id. [16-3].) The ALJ further documented
medical examinations that countered Ms. Moffitt’s alleged symptoms. For example, she had a
normal CT scan of the brain and a normal electroencephalogram. (Id. [16-3] at 23–24.). Dr.
Carlini’s mental status exam “showed her as alert and oriented.” (Id. [16-3] at 23.) Dr. Saviers’s
examination revealed Ms. Moffitt as “alert, oriented, and cooperative.” (Id. [16-3] at 24.) This
examination also found that “[s]he exercised good judgment” and “was able to do simple math
calculations.” (Id. [16-3].) The ALJ did not give significant weight to Dr. Pearson’s report on
Ms. Moffitt’s mental state, which Ms. Moffitt does not challenge. (Id. [16-3] at 25.)
Additionally, I note the inconsistencies within Ms. Moffitt’s own testimony and reports
regarding her alleged symptoms, such as the frequency of her seizures. (Id. [16-3] at 39–40, [167] at 191.) I find Ms. Moffitt’s activities of daily living provide additional evidence in support of
the ALJ’s credibility finding, as do the findings of several doctors that she does not experience
seizures—and thus the side effects of panic, anxiety, depression, and drowsiness—as frequently
as she claims. Therefore, while I consider the ALJ’s explanation sufficient, an error would be
harmless in any event.
II.
Lay Witness Testimony
Ms. Moffitt argues the ALJ erred in discrediting the testimony of two lay witnesses: Ms.
10 – OPINION AND ORDER
Moffitt’s husband Joseph Haselden and Ms. Moffitt’s mother-in-law Lynne Pierucci. 3 Ms.
Moffitt claims, “[t]he ALJ merely discounted the lay witness testimony as being inconsistent
‘with the record as a whole.’” (Pl. Br. [18] at 12 (quoting AR [16-3] at 23.)) She argues this
reasons is “legally inadequate.” (Id. [18].)
The Commissioner responds that the ALJ did provide adequate reasons for discounting
lay witness testimony, even though the ALJ did not specifically identify how the lay witness
testimony was inconsistent with the record as a whole. (Def. Br. [19] at 9.) The Commissioner
argues the ALJ provided the germane reason of contradictory medical testimony to discredit the
lay witness. (Id. [19].) That germane reason is sufficient to discount the lay witness testimony.
(Id. [19].) For the following reasons, I agree with the Commissioner and uphold the ALJ’s
credibility findings of the lay witnesses.
A.
Lay Witness Credibility Standards
The ALJ has a duty to consider lay witness testimony. 20 C.F.R. § 404.1513(d); Molina
v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). Family members in a position to observe the
claimant’s symptoms and daily activities are competent to testify regarding the claimant’s
condition. Dodrill v. Shalala, 12 F.3d 915, 918–19 (9th Cir. 1993). The ALJ may not reject such
testimony without comment and must give reasons germane to the witness for rejecting his
testimony. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). One such reason is that the
lay witness’s testimony is inconsistent with the medical evidence. Bayliss v. Barnhart, 427 F.3d
1211, 1218 (9th Cir. 2005). Further, the ALJ is not required to address each witness “on an
individualized witness-by-witness basis,” and may reject lay testimony predicated upon reports
of a claimant properly found not credible. Molina, 674 F.3d at 1114.
3
Mr. Haselden’s and Ms. Pierucci’s names are spelled inconsistently in the record. I will use the spelling of their
names provided in Mr. Haselden’s Third Party Seizure Questionnaire. (AR [16-7] at 149, 150.)
11 – OPINION AND ORDER
B.
Analysis
In this case, the ALJ found Mr. Haselden and Ms. Pierucci not fully credible. (AR [16-3]
at 23.) The ALJ explained that Mr. Haselden’s and Ms. Pierucci’s testimony were “not given
significant weight because their testimony is not consistent with the record as a whole.” (Id. [163].) Mr. Haselden testified that Ms. Moffitt had grand mal seizures one to three times a month.
(Id. [16-3].) Ms. Pierucci testified that Ms. Moffitt had two to three seizures a month. (Id. [163].) The ALJ also did not give significant weight to Mr. Haselden’s Third Party Seizure
Questionnaire because “his answers are not consistent with the record as a whole. (Id. [16-3].) In
the questionnaire, Mr. Haselden indicated that Ms. Moffitt had one grand mal seizure and five
petit mal seizures in the past month. (Id. [16-3].)
Here, the ALJ properly discredited Ms. Moffitt’s testimony regarding the intensity,
persistence, and limiting effect of her seizures. The ALJ found Ms. Moffitt’s testimony not
credible based on her contradictory and inconsistent statements, her treatment history, and the
objective medical evidence. Similarly, Mr. Haselden and Ms. Pierucci testified to an exaggerated
degree and frequency of seizures than those documented in the objective medical evidence and
treatment history. Moreover, Mr. Haselden’s testimony was inconsistent with the answers in his
questionnaire. In such circumstances where the ALJ provided clear and convincing reasons for
discrediting the testimony of Ms. Moffitt, the ALJ was not obliged to re-assess Mr. Haselden’s
and Ms. Pierucci’s testimony regarding the similarly alleged intensity, persistence, and limiting
effect of Ms. Moffitt’s seizures. Molina, 674 F.3d at 1114 (“[I]f the ALJ gives germane reasons
for rejecting testimony by one witness, the ALJ need only point to those reasons when rejecting
similar testimony by a different witness.”) (citing Valentine v. Astrue, 574 F.3d 685, 694 (9th
Cir. 2009)). Thus, it was sufficient for the ALJ to discount the lay witness testimony as
12 – OPINION AND ORDER
inconsistent with the record as a whole.
The Ninth Circuit recently reaffirmed that even if “the ALJ erred in failing to give
germane reasons for rejecting the lay witness testimony,” the error is harmless because “the lay
testimony described the same limitations as [claimant’s] own testimony, and the ALJ’s reasons
for rejecting [the claimant’s] testimony apply with equal force to the lay testimony.” Id. at 1122.
For the same reasons, I find any error to be harmless. The ALJ validly rejected the degree and
frequency of the seizures described by the lay witnesses in rejecting Ms. Moffitt’s similar
testimony. Thus, I am “confident” that any “failure to give specific witness-by-witness reasons
for rejecting the lay testimony did not alter the ultimate nondisability determination.” See id.
Further, to establish reversible error, Ms. Moffitt must specifically show that Mr.
Haselden’s and Ms. Pierucci’s testimony, if credited, would establish a different disability
conclusion. Id. at 1116. Ms. Moffitt makes no attempt to explain the effect of any alleged error
by the ALJ, and therefore does not establish reversible error.
III.
Step Five
I uphold the ALJ’s decision at step five because Ms. Moffitt provides no more than a
conclusory allegation that she disputes the ALJ’s decisions at this step. (Pl. Br. [18] at 5.) See
Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (rejecting claimant’s challenge to ALJ’s
findings where claimant “offered no theory, plausible or otherwise,” and pointed to no evidence
of record supporting his claim). Furthermore, even if the ALJ erred in finding that Ms. Moffitt
was not disabled under step four, any error is harmless because ALJ also made alternative
findings at step five that Ms. Moffitt was not disabled. (Id. [16-3] at 25.)
CONCLUSION
Ms. Moffitt fails to show that the ALJ erroneously evaluated her testimony and that of the
13 – OPINION AND ORDER
lay witnesses. The ALJ’s decision is based upon the record and correct legal standards and is
therefore AFFIRMED.
IT IS SO ORDERED.
DATED this
18th
day of December, 2012.
/s/ Michael W. Mosman____
MICHAEL W. MOSMAN
United States District Judge
14 – OPINION AND ORDER
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