Larson v. Commissioner Social Security Administration

Filing 19

OPINION & ORDER: The Commissioner's decision is affirmed. See 27-page opinion & order attached. Ordered by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MICHELLE LARSON,
Plaintiff,
v.

No. 01:13-CV-00659-HZ

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
Martin R. Cohen
P.O. Box 1229
4040 Douglas Way
Lake Oswego, Oregon 97035
Linda S. Ziskin
P.O. Box 753833
Las Vegas, Nevada 89136
Attorneys for Plaintiff
///
///
1 - OPINION & ORDER

OPINION & ORDER

S. Amanda Marshall
UNITED STATES ATTORNEY
District of Oregon
Ronald K. Silver
ASSISTANT UNITED STATES ATTORNEY
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97210-2902
Thomas M. Elsberry
SPECIAL ASSISTANT UNITED STATES ATTORNEY
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Michelle Larson brings this action seeking judicial review of the Commissioner's
final decision to deny disability insurance benefits (DIB) and supplemental security income
(SSI). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. §
1383(c)(3)). I affirm the Commissioner's decision.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB and SSI on December 10, 2009, alleging an onset date of
February 3, 2009. Tr. 145-51, 152-55. Her application was denied initially and on
reconsideration. Tr. 67-74, 76-84, 86-87.
On December 7, 2011, Plaintiff appeared, with counsel, for a hearing before an
Administrative Law Judge (ALJ). Tr. 34-55. On December 23, 2011, the ALJ found Plaintiff
not disabled. Tr. 14-32. The Appeals Council denied review. Tr. 1-5.
///

2 - OPINION & ORDER

FACTUAL BACKGROUND
Plaintiff alleges disability based on depression and low back pain. Tr. 184. At the time
of the hearing, she was forty-seven years old. Tr. 38. She completed ninth grade and has past
relevant work in sales. Tr. 25. Because the parties are familiar with the medical and other
evidence of record, I refer to any additional relevant facts necessary to my decision in the
discussion section below.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if unable to "engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can be
expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. §§
423(d)(1)(A), 1382c(3)(a).
Disability claims are evaluated according to a five-step procedure. See Valentine v.
Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the ultimate burden of proving disability.
Id.
In the first step, the Commissioner determines whether a claimant is engaged in
"substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S.
137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner
determines whether the claimant has a "medically severe impairment or combination of
impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the
claimant is not disabled.
In step three, the Commissioner determines whether plaintiff's impairments, singly or in
3 - OPINION & ORDER

combination, meet or equal "one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at
141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed
disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the
claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five,
the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at
141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden
and proves that the claimant is able to perform other work which exists in the national economy,
the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since her alleged onset date. Tr. 19. Next, at steps two and three, the ALJ determined
that Plaintiff has severe impairments of mild degenerative disc disease of the lumbar spine,
obesity, depression, post-traumatic stress disorder, and alcohol abuse in remission, but that the
impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 1921.
At step four, the ALJ concluded that Plaintiff has the residual functional capacity (RFC)
to perform light work, meaning she can lift and/or carry 20 pounds occasionally and 10 pounds
frequently, that she can stand and/or walk, with normal breaks, 6 hours in an 8-hour day, and sit,
4 - OPINION & ORDER

with normal breaks, 6 hours in an 8-hour day. Tr. 21. Additionally, she can never climb ladders,
ropes, or scaffolds, although she can occasionally climb ramps and stairs, and can occasionally
balance, stoop, kneel, crouch, and crawl. Id. She should avoid even moderate exposure to
unprotected heights, walking on uneven terrain, and even moderate use of moving machinery.
Id. In addition, she is limited to simple, routine, repetitive work involving only simple workrelated decisions and routine workplace changes. Id. Finally, she is limited to a stress level of no
more than 8 on a scale of 10, and will be off-task for 5 minutes out of every hour. Id.
With this RFC, the ALJ determined that Plaintiff is unable to perform any of her past
relevant work. Tr. 25. However, at step five, the ALJ determined that Plaintiff is able to perform
jobs that exist in significant numbers in the economy such as housekeeping cleaner, "marker II,"
and advertising-material distributor. Tr. 26-27. Thus, the ALJ determined that Plaintiff is not
disabled. Tr. 27.
STANDARD OF REVIEW
A court may set aside the Commissioner's denial of benefits only when the
Commissioner's findings are based on legal error or are not supported by substantial evidence in
the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). "Substantial
evidence means more than a mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal
quotation marks omitted). The court considers the record as a whole, including both the
evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v.
Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than
one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591
5 - OPINION & ORDER

(internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149,
1152 (9th Cir. 2007) ("Where the evidence as a whole can support either a grant or a denial, [the
court] may not substitute [its] judgment for the ALJ's") (internal quotation marks omitted).
DISCUSSION
Plaintiff argues that the ALJ improperly rejected the opinions of her treating physicians,
failed to consider adverse side effects of her medications, and improperly rejected the testimony
of a lay witness.
I. Treating Physician Opinions
Plaintiff's February 3, 2009 alleged onset date was the date she was in an automobile
accident in which her boyfriend was killed. Shortly thereafter, she began treating with
Physician's Assistant (PA) Jinny Farrar at the Park Street Clinic in Lebanon, Oregon for
complaints of back pain and depression, both related to the accident. Tr. 335-403 (showing
treatment records from February to June 2009).
As part of her care there, she had a lumbar x-ray taken on February 17, 2009 which
showed a curvature of the spine convex to the left, which was thought to be due to scoliosis or
spasm. Tr. 396. There were no acute fractures. Id. Mild degenerative disc disease was present
at the L3-4 vertebrae. Id. On February 20, 2009, PA Farrar examined Plaintiff who reported
emotional distress and depression and severe back pain. Tr. 391. On physical examination, PA
Farrar found spinal tenderness throughout Plaintiff's lower back bilaterally, and point tenderness
over her lower spine. Tr. 393. Plaintiff had a decreased range of motion in all directions due to
pain with positive sitting and lying leg raises bilaterally. Id. PA Farrar diagnosed Plaintiff as
having a lumbar back strain, possibly due to muscle spasm, and depression and anxiety. Tr. 394.
6 - OPINION & ORDER

She referred Plaintiff to physical therapy, prescribed Vicodin and Percocet, as well as ibuprofen,
and also started her on an antidepressant medication. Id. She also prescribed lorazepam as
needed for anxiety issues or as needed for sleep. Id.
Plaintiff saw PA Farrar until June 2009 when Plaintiff moved to Reedsport. Tr. 341-89.
Plaintiff continued to complain of back pain throughout this time, as well as depression. Id. At
one point, Plaintiff complained of cervical pain and headaches, prompting PA Farrar to refer
Plaintiff for a cervical MRI which showed only moderate abnormalities. Tr. 367-68. PA Farrar
referred Plaintiff to a neurologist who noted on April 9, 2009 that Plaintiff's upper extremity
symptoms had improved with physical therapy and that the cervical MRI showed some
degenerative type changes. Tr. 359-62. The neurologist recommended she obtain a lumbar back
MRI to rule out a disc injury. Tr. 361. That test, performed April 13, 2009, showed only mild
degenerative disc disease. Tr. 354-55.
Although Plaintiff continued to complain of low back pain during her treatment with PA
Farrar, she also made the following reports: (1) on February 26, 2009, she reported that Percocet
was helping but she still was tightening up with knots and wanted something else for the pain;
Tr. 382; (2) on April 10, 2009, she reported that her depression had improved with Prozac but
she still had no improvement with her back.; Tr. 356; and (3) on May 4, 2009, she reported that
in regard to her back, she continued to improve, but very slowly, and that her Prozac was
working well for her depression. Tr. 347.
During this time, Plaintiff was receiving physical therapy beginning in early March 2009.
Tr. 378-79. Initially, the physical therapist noted that in static standing, Plaintiff's left hip was
higher than her right and that her gait was antalgic with the trunk forward flexed about 10
7 - OPINION & ORDER

degrees and decreased at length bilaterally. Tr. 378. All of her trunk active range of motion was
limited by pain. Tr. 378. On April 8, 2009, the physical therapist reported that Plaintiff was
progressing slowly, but consistently. Tr. 363. Her lumbar active range of motion had improved.
Id. On May 5, 2009, Plaintiff reported to the physical therapist that she continued to progress
and noted more rapid improvements during the previous two weeks. Tr. 345.
During her treatment of Plaintiff, PA Farrar periodically certified to State Farm Insurance
that the February 3, 2009 car accident caused Plaintiff acute muscle strain and pain which in turn
prevented Plaintiff from performing household chores. Tr. 397-98 (for period of February 20,
2009 to March 13, 2009); Tr. 369-70 (for period of February 20, 2009 to April 10, 2009); Tr.
350-51 (for period of February 20, 2009 to May 8, 2009); Tr. 340 (for month of May 2009).
However, by May 4, 2009, PA Farrar stated that there was no indication from Plaintiff's MRIs, xray, or neurology consult of anything supporting disability. Tr. 349. PA Farrar encouraged
Plaintiff to continue with movement and to begin doing daily chores. Id. Given Plaintiff's
continued reports of pain, PA Farrar agreed to refill Plaintiff's pain medication and muscle
relaxant prescriptions for one more month, but after that she would have to be evaluated by a
physiatrist. Tr. 349. PA Farrar reassured Plaintiff that although muscle strains were slow to
heal, they do improve with proper exercise, stretching, and a positive outlook. Id.
After moving to Reedsport in June 2009, Plaintiff established care in July 2009 with
Dunes Family Healthcare, primarily being seen by Jianming Song, M.D., and Rio Lion, D.O. At
her initial visit with Dr. Song, Plaintiff complained of excruciating lumbar pain for which she
was taking Percocet. Tr. 304. She reported that the Percocet upset her stomach and did not
provide enough relief. Id. Dr. Song replaced the Percocet with tramadol, amitriptyline, and
8 - OPINION & ORDER

Flexeril. Id. He referred her to Dr. Rossi at the "Family Resource Center" for problems with her
depression and noted that he would consider increasing her Prozac in the future if needed. Tr.
305.
Throughout the rest of 2009, Plaintiff occasionally saw Dr. Song who noted in September
2009, that Plaintiff reported that her depression had improved somewhat, but was not sufficiently
controlled. Tr. 307. She requested an increase in her Prozac dose. Id. Dr. Song increased her
dose from 20 to 40 milligrams daily. Id. As for her back, he indicated that her pain was
secondary to mild degenerative disc disease and he advised her to use cold/warm packs for 10-20
minutes, 2-3 times per day. Id. He recommended over-the-counter ibuprofen or Tylenol, and
prescribed amitriptyline, tramadol, and Flexeril. Id. At her request, he referred her to a pain
specialist, Dr. Croson. Id. On October 26, 2009, Plaintiff had another set of lumbar spine x-rays
which showed only mild degenerative changes with no acute findings. Tr. 303.
In November 2009, Dr. Song noted that Plaintiff had recently received a cortisone
injection from Dr. Croson which seemed to cause an increase in pain symptoms. Tr. 306. Dr.
Song gave her an injection of Toradol and a handout of exercises designed to decrease leg pain.
Id. He urged her to follow up with Dr. Croson. Id. However, later in November, she called Dr.
Song's office to complain that treatment with Dr. Croson was not working and she wanted to see
someone else. Tr. 308. A November 25, 2009 chart note indicates that a pain specialist in
Eugene would call her to make an appointment but there is no record of her having seen a
Eugene pain specialist. A separate chart note entered by Dr. Song and dated December 14, 2009,
states that Dr. Croson referred her to see Dr. Chung, a pain specialist in North Bend, to consider
nerve stimulation treatment. Tr. 309. No record of treatment with that provider is found in the
9 - OPINION & ORDER

Administrative Record. Id.
During that December 14, 2009 office visit, Dr. Song noted that Plaintiff's lower back xrays and MRI were unremarkable. Tr. 309. He also noted that Plaintiff reported that her
depression had improved on the increased dose of Prozac and assessed her depression and posttraumatic stress disorder as controlled. Id. He indicated that she had no loss of muscle strength
or sensation and that she could ambulate by herself but had a hesitant gait. Id. He kept her on
the tramadol and Flexeril for pain, and added oxycodone if necessary. Id. He gave her another
Toradol injection. Id. He encouraged her to see Dr. Chung, the pain specialist. Id.
Plaintiff also continued with physical therapy in Reedsport. At her first physical therapy
appointment on July 23, 2009, she complained that every activity increased her back pain, and
that she experienced pain with prolonged sitting, standing, and walking. Tr. 301. Her strength
was within normal limits in both upper and lower extremities although she had some lumbosacral
pain with resistance to right and left hip flexion. Id. She had a guarded gait. Tr. 302. As part of
her physical therapy, Plaintiff did pool exercises and received heat treatments from July to
October 2009. Tr. 326-334. In August 2009, she received a TENS unit and reported doing well
with that. Tr. 331. However, an undated physical therapy note refers to Plaintiff having severe
pain, being followed in a pain clinic, and being discharged from physical therapy. Tr. 320.
In 2010, Plaintiff began treating with Dr. Lion, an osteopathic physician in practice with
Dr. Song at Dunes Family Healthcare. Tr. 436. Her first appointment with Dr. Lion was
February 10, 2010, at which Plaintiff reported experiencing "lots of knots" in her back since the
February 3, 2009 car accident. Id. She reported that the pool therapy she did with physical
therapy had been beneficial, but she stopped going after what she characterized as her adverse
10 - OPINION & ORDER

reaction to the treatment she received from pain specialist Dr. Croson. Id. She also reported that
heat and the TENS unit helped occasionally. Id. Upon physical examination, Dr. Lion noted a
normal gait and found no significant vertebral point tenderness but did remark on significant
spasticity in the paravertebral musculature in the right lumbosacral region which was tender to
palpation. Id. There was also bilateral hamstring tightness. Id. Dr. Lion opined that Plaintiff's
depression went "hand in hand" with her low back pain, meaning her unwillingness "to let her
guard down" and process her emotions was "playing a role" in her persistent low back pain. Id.
He noted her normal MRIs and x-rays. Id.
Dr. Lion performed osteopathic treatment to Plaintiff at this visit which included gentle
soft tissue myofascial release and heat. Id. He anticipated a "slow but gradual process." Id. He
referred her to physical therapy to resume the pool exercises and instructed her to walk thirty
minutes per day. Id. He also referred her to Dr. Rossi at the Family Resource Center, as Dr.
Song had previously done, for counseling. Id.
On March 1, 2010, Plaintiff reported to Dr. Lion that she had not followed through on his
referrals to Dr. Rossi or to physical therapy because she had developed a tooth infection. Tr. 437.
She reported feeling "mostly the same" in regard to her back and "maybe somewhat . . . a little
better" in regard to her depression. Id. Dr. Lion performed more heat treatment and soft tissue
myofascial release. Id. He gave her some exercises and encouraged her to walk and follow
through with his previous recommendations. Id. Later that month, when Plaintiff saw Dr. Lion
again, she reported she had experienced a little pain relief from her last treatment, indicating that
she was no worse and overall, was slightly improved. Tr. 434. She still had not followed
through with Dr. Rossi. Id. During the visit, Dr. Lion performed more osteopathic treatment and
11 - OPINION & ORDER

taught Plaintiff range of motion techniques and other exercises. Id.
At her next visit, on March 17, 2010, Plaintiff remarked that while she felt better initially
after an osteopathic treatment, she did not believe she had experienced any real changes since
starting manipulation. Tr. 435. She stated that she was doing the exercises which she thought
were helping her loosen up, but her pain seemed about the same, and even slightly worse that
particular week. Id. She reported feeling significantly depressed but expressed resistance to
seeing Dr. Rossi because, she explained, she does not like to talk about her problems. Id. She
was experiencing significant stress waiting for a determination on her social security disability
application. Id. Dr. Lion noted increased spasticity in her left paravertebral musculature of the
thoracolumbar region and increased somatic dysfunction in the right sacroiliac region. Id. Dr.
Lion provided more osteopathic treatment and Plaintiff received a Toradol injection. Tr. 433. In
response to Plaintiff's complaint that tramadol was making her feel sleepy, he stopped that
prescription and started salsalate for pain, in additional to the oxycodone she was already
receiving. Id.
On March 26, 2010, Plaintiff reported to Dr. Lion that her pain was worse and seemed to
coincide with the denial of her disability application. Tr. 432. This was also contributing to her
depression. Id. She still believed her depression medications were helpful. Id. She contacted
Dr. Rossi and determined she could not afford counseling. Id. She tried marijuana for her pain
which she reported helped, allowing her to get a good night's sleep and to go without oxycodone
for two to three days. Id. She noted she intended to start pool therapy again. Id.
On physical examination, Dr. Lion continued to find tenderness, but noted that her
straight leg raise was negative and the flexibility of her hamstrings was improving. Id. He
12 - OPINION & ORDER

performed some osteopathic treatment in his office and discussed various stretching and
strengthening exercises for her to pursue including walking. Tr. 430. Dr. Lion noted that he
filled out disability forms for Plaintiff. Id. He opined that her back pain had an "organic
etiology" based on the car accident and that she had "significant signs of somatic dysfunction."
Id. He also believed this was strongly related to her post-traumatic stress disorder and depression
which he felt was not controlled. Id. He believed she would benefit from psychiatric help and
counseling. Id. Due to her back pain, he opined that she was unable to stand, walk, or sit for
more than 20 minutes at a time, unable to lift anything heavier than 10 pounds, although she
could lift less than 10 pounds occasionally, and needed to avoid any type of bending and lifting.
Id.
Dr. Lion completed two forms on March 26, 2010, assessing Plaintiff's physical and
mental functional capacities. Tr. 488, 489. As to her physical capacities, he stated that she
could stand or walk a total of 0-2 hours in an eight hour day, and could sit a total of 0-2 hours in
an eight hour day. Tr. 488. She could occasionally lift less than 10 pounds, could occasionally
to rarely lift 10 pounds, could rarely lift 20 pounds, and could never lift 50 pounds. Id. She
could occasionally finger, grasp, and handle, and could never stoop/bend or crouch. Id. She
would frequently experience pain severe enough to interfere with the attention and concentration
required to perform simple work tasks. Id. In a section of checkboxes, he cited her signs and
symptoms as impaired sleep, substance dependence, depression, anxiety, muscle weakness, and
reduced range of motion. Id. Finally, he indicated that Plaintiff's impairments would cause her
to miss work more than four days per month. Id.
As to her mental functional capacity, he answered "yes" to the question of whether
13 - OPINION & ORDER

Plaintiff had a low IQ or reduced intellectual functioning, but noted that this was per Plaintiff's
report and that he had performed no IQ testing. Tr. 489. He checked "yes" to the question of
whether Plaintiff's psychiatric condition exacerbated her pain, explaining that her pain and
depression go "hand in hand" because her condition increases her pain perception and makes pain
management more difficult. Id. He repeated his opinion that her impairment would cause her to
miss more than four days per month. Id. He assessed her as markedly impaired, which was
defined as unable to function for more than one-third of the work day, in her activities of daily
living, in her ability to maintain social functioning, and in her ability to maintain concentration,
persistence, and pace, and indicated that she had "marked" episodes of decompensation. Id.
Also on March 29, 2010, Plaintiff saw Dr. Song again. Tr. 431. He remarked that her
depression was uncontrolled because her "Zung depression score" in the clinic that day was 68
which he stated was an indication of severe depression. Id. The scoring sheet shows this to be
the "Zung Self-Rating Depression Scale," meaning it is a subjective report of symptoms
completed by Plaintiff. Tr. 492. The record does not contain information about how the total
scale correlates to a particular level of depression. In response to her score, Dr. Song increased
her Prozac from 40 to 60 milligrams each day as well and continued her on Trazodone and
amitriptyline. Tr. 431.
On that same date, Dr. Song completed the same physical and mental capacities
assessments that Dr. Lion completed a few days previously. Tr. 490-91. His assessments were
similar to Dr. Lion's. Compare Tr. 288-89 with Tr. 490-91. In response to the question on the
mental functional capacity assessment regarding whether Plaintiff had a low IQ or reduced
intellectual functioning, Dr. Song responded "unknown," and explained that Plaintiff apparently
14 - OPINION & ORDER

had difficulty in thinking and concentrating and sometimes was forgetful. Tr. 491.
Plaintiff saw Dr. Lion again on April 19, 2010. Tr. 429. She reported that all of her
problems continued and expressed stress over her lack of money and disability denial. Id. Dr.
Lion went through disability paperwork with her, for a second time, and referred her to Dr. Song,
whom Dr. Lion characterized as Plaintiff's primary physician, to complete medical marijuana
program paperwork. Id.
Dr. Lion completed another set of physical and mental functional capacities assessments
on April 19, 2010. Tr. 458-67. These were co-signed by Dr. Song. Id. As to her physical
limitations, he again stated that she could sit for 0-2 hours in an 8-hour day and could stand/walk
for 0-2 hours in an 8-hour day. Tr. 459. He noted that it would be necessary or medically
recommended that she not sit continuously in a work setting. Id. She could occasionally lift less
than 10 pounds, rarely lift 10-20 pounds, and never lift 50 pounds. She has significant
limitations in repetitive reaching, handling, fingering, or lifting. Id. Her condition interferes
with her ability to keep her neck in a constant position. Id. Dr. Lion further stated that Plaintiff
could not engage in a full-time competitive job that requires activity on a sustained basis and that
she had psychological limitations that affected her ability to work such a job. Tr. 460. She could
perform no stooping, no kneeling, and no bending. Id. He opined that emotional factors
contributed to the severity of her symptoms and functional limitations, but he indicated she was
not a malingerer. Id. He believed she was capable of tolerating low work stress. Id. As the
basis for his conclusion, he cited her need for multiple prescriptions to help her function and her
dependence on medication. Tr. 460. He stated that Plaintiff's impairments or treatment would
cause her to miss work more than three times per month. Tr. 461 In the section for additional
15 - OPINION & ORDER

comments, he noted that since the accident, she had suffered back pain, depression, and posttraumatic stress disorder and that "[t]his" would be an "ongoing process[.]" Id. He remarked that
at this time, she was unable to "tolerate additional simple stressors and [activities of daily living]
required at a regular job." Tr. 461.
As to her mental functional capacity, Dr. Lion checked seventeen different signs and
symptoms Plaintiff was experiencing and rated her as unable to meet competitive standards in
fifteen of sixteen abilities and aptitudes required to perform unskilled work. Tr. 463, 464. Dr.
Lion rated her as moderately impaired in her activities of daily living, and markedly impaired in
her abilities to maintain social functioning and to maintain concentration, persistence, or pace.
Tr. 466. He also stated that she had experienced four or more episodes of decompensation within
a twelve-month period, each of which lasted at least two weeks duration. Id. He opined that
Plaintiff's impairments or treatment would cause her to miss more than four days of work per
month. Id.
In the section asking for clinical findings demonstrating the severity of Plaintiff's
impairment, Dr. Lion cited her recent Zung depression scale score of 68 which he indicated
meant she had at least moderate to severe depression. Tr. 462. He added that her mood was
sometimes "severe down," but she had no suicide plan, no hallucination, and no delusion on her
treatment now. Id. He indicated that he would "follow-up the Rx efficacy" which I understand
to mean that Dr. Lion or Dr. Song would follow-up and determine if the recently increased dose
of Prozac was effective. In the section for additional reasons as to why Plaintiff would have
difficulty working at a regular job on a sustained basis, Dr. Lion remarked that she had
uncontrolled depression and chronic pain which was not controlled. Tr. 467.
16 - OPINION & ORDER

Dr. Song saw Plaintiff on April 27, 2010. Tr. 480. He continued her medications and
completed the medical marijuana forms. Id. The next time Plaintiff saw Dr. Song was on July 1,
2010 when she complained of left arm pain. Tr. 477. After that, it appears that she did not return
to see either Dr. Lion or Dr. Song until March 2011 when she saw Dr. Song and reported that her
depression and insomnia were not well controlled. Tr. 478. She did not complain about her back
pain. Id. Curiously, although in March 2010 Dr. Song indicated that he was increasing Plaintiff's
Prozac dose from 40 to 60 milligrams per day, the March 2011 chart note states that she was
taking 20 milligrams of Prozac, twice per day, for a total of 40 milligrams per day. Id. He again
stated he was going to increase the dose to 60 milligrams per day. Id. He also increased her
Trazodone. Id.
The record shows that between April 2011 and September 2011, Plaintiff saw Dr. Song
three times. Tr. 473-75, 529-30. She continued to complain of chronic back pain and Dr. Song
kept her on her current pain relief regimen. Id. He also recommended that she do as much
physical activity as possible outside to relieve some of her pain and to help with her anxiety and
sleep. Id.
In assessing her physical RFC, the ALJ gave credit to the assessments of the
nonexamining state agency medical consultants who opined that Plaintiff remained able to
perform light work. Tr. 24 (citing Tr. 421-28, 468). He found these assessments to be consistent
with the longitudinal record and with each other. Id. In contrast, the ALJ gave less weight to the
opinions of her family physicians because their assessments of severe limitation were
inconsistent with the objective findings which indicated only mild degenerative disc disease. Id.
The ALJ had previously discussed the objective evidence, including x-rays, physical therapy
17 - OPINION & ORDER

notes suggesting improvement, and MRIs. Tr. 22.
As to her mental RFC, the ALJ also gave little weight to Plaintiff's treating physicians'
opinions that Plaintiff is unable to meet competitive standards in her mental abilities and
aptitudes to perform unskilled work. Tr. 24. The ALJ first noted that neither of the physicians
was a specialist and there was no evidence that they possessed the relevant expertise to accurately
evaluate the Plaintiff's mental impairments. Id. Second, the ALJ found that there was no support
for their opinions. Nonetheless, the ALJ gave "some weight" to their opinions over the opinion
of examining psychologist Gail Wahl, Ph.D., who opined that Plaintiff had no functional
limitations. Id.
Plaintiff argues that the ALJ erred in rejecting the opinions of Dr. Song and Dr. Lion.
She contends that the ALJ's reasoning does not meet the required standard for rejection of
treating physician opinions. She further contends that their opinions are supported by the
longitudinal medical record and that the ALJ ignored the "concept" that her combination of
physical impairments and depression yields more severe results than either impairment
considered separately.
Social security law recognizes three types of physicians: (1) treating, (2) examining, and
(3) nonexamining. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1996). Generally, more weight is given to the opinion of a
treating physician than to the opinion of those who do not actually treat the claimant. Id.; 20
C.F.R. §§ 1527(c)(1)-(2), 416.927(c)(1)-(2).
If the treating physician's medical opinion is supported by medically acceptable
diagnostic techniques and is not inconsistent with other substantial evidence in the record, the
18 - OPINION & ORDER

treating physician's opinion is given controlling weight. Orn v. Astrue, 495 F.3d 625, 631 (9th
Cir. 2007); Holohan, 246 F.3d at 1202. If a treating physician's opinion is not given "controlling
weight" because it is not "well-supported" or because it is inconsistent with other substantial
evidence in the record, the ALJ must still articulate the relevant weight to be given to the opinion
under the factors provided for in 20 C.F.R. §§ 1527(d)(2), 416.927(d)(2). Orn, 495 F.3d at 631.
If the treating physician's opinion is not contradicted by another doctor, the ALJ may
reject it only for "clear and convincing" reasons. Id. at 632. Even if the treating physician's
opinion is contradicted by another doctor, the ALJ may not reject the treating physician's opinion
without providing "specific and legitimate reasons" which are supported by substantial evidence
in the record. Id.
Plaintiff argues that the ALJ was required to provide clear and convincing reasons to
reject the treating physicians' opinions because they were contradicted only by a nonexamining
physician, at least as to the physical RFC, which according to Plaintiff is not substantial evidence
capable of creating a contradictory opinion. Plaintiff is mistaken. See Widmark v. Barnhart, 454
F.3d 1063, 1066 & n.2 (9th Cir. 2006) (holding that ALJ had to provide specific, legitimate
reasons supported by substantial evidence in the record to reject the treating physician's opinion
which was contradicted by the opinion of a nonexamining disability determination services
physician; further noting that although the opinion of a nonexamining physician "alone cannot
constitute substantial evidence for rejecting" a treating physician's opinion, the nonexamining
physician's opinion "may suffice to establish a conflict among the medical opinions"). Thus, the
ALJ was required to provide specific, legitimate reasons in support of his rejection of the
opinions of Dr. Song and Dr. Lion.
19 - OPINION & ORDER

The ALJ may reject a treating physician's opinion when it is unsupported by objective
medical findings. Batson v. Comm'r, 359 F.3d 1190, 1195 (9th Cir. 2004). As the ALJ noted
here, Plaintiff's x-rays and MRIs indicated only mild degenerative changes in her back.
Additionally, as the record, recited in detail above, shows, at the time Dr. Song and Dr. Lion
made their assessments in March and April 2010, Plaintiff had made progress in physical
therapy. E.g., e.g., Tr. 363 (physical therapist noted slow progress and lumbar range of motion
improvement; April 8, 2009); Tr. 347 (back continued to improve, albeit slowly; May 4, 2009);
Tr. 345 (plaintiff reported more rapid progress with physical therapy; May 5, 2009); Tr. 301
(normal strength as measured by physical therapist in July 2009); Tr. 436 (reported that pool
therapy had been beneficial; February 2010).
Other objective evidence shows her continued improvement. Compare Tr. 393 (positive
leg raises on February 20, 2009) with Tr. 432 (negative straight leg raise, improving hamstring
flexibility as reported by Dr. Lion on March 11, 2010); compare Tr. 378 (antalgic gait on March
4, 2009) with Tr. 436 (normal gait as reported by Dr. Lion on February 10, 2010); see also
Tr. 309 (no loss of muscle strength, ambulation with hesitant gait on December 14, 2009).
Although Plaintiff's subjective reports varied and at times she complained of increasing
pain and symptoms, the ALJ did not err by concluding that the objective medical evidence and
longitudinal record is inconsistent with the severe restrictions opined by Dr. Lion and Dr. Song.1
1

Additionally, PA Farrar noted in May 2009 that Plaintiff's MRIs, x-rays, and neurology
consult did not indicate "anything that supports disability." Tr. 349. While a PA is classified as
an "other source" 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1), meaning the PA's opinion is not
entitled to the same deference as a medically acceptable treating source, this is at least additional
evidence in the record of a trained medical professional's opinion that the objective medical
evidence did not support, at least as of May 2009, restrictions consistent with a determination of
disability.
20 - OPINION & ORDER

Given that this is a specific, legitimate reason supported by substantial evidence in the record, the
ALJ did not err in rejecting the physical capacities assessments provided by Plaintiff's treating
physicians.
As to her mental impairments, the ALJ was entitled to give her treating physicians'
opinions less weight because they are generalists and not specialists. See Benecke v. Barnhart,
379 F.3d 587, 594 n.4 (9th Cir. 2004) (opinions from specialists related to that person's speciality
are afforded more weight); 20 C.F.R. §§ 404.1527(d)(5) (agency generally gives more weight to
the opinion of a specialist about medical issues related to his or her area of specialty than to the
opinion of a source who is not a specialist); 416.927(c)(5) (same).
As for the lack of support for the treating physicians' opinions regarding Plaintiff's mental
functional capacities, the record reflects that Plaintiff's depression improved with medication.
E.g., Tr. 356 (reporting improvement of depression with Prozac on April 10, 2009); Tr. 309 (Dr.
Song noting in December 2009 that Plaintiff's depression had improved on an increased dose of
Prozac and was now controlled); Tr. 437 (Plaintiff reported to Dr. Lion on March 1, 2010 that
she felt a little better in regard to her depression); Tr. 432 (Plaintiff reported to Dr. Lion on
March 26, 2010 that while the denial of her disability application contributed to her depression,
she believed her depression medications were still helpful). Despite the record of improvement,
Dr. Song remarked at the end of March 2010 that Plaintiff's depression was uncontrolled. Tr.
431. This was based, however, not on any objective diagnostic test but on a self-rated scoring
sheet, that is, a subjective report of symptoms. Id. Importantly, Dr. Song increased Plaintiff's
Prozac and there are no records of the status of her depression between the time that the dose was
increased and the time that Dr. Song and Dr. Lion completed their functional assessments of
21 - OPINION & ORDER

Plaintiff. In fact, Dr. Lion's April 19, 2010 assessment notes that he would follow-up on the
"efficacy" of her prescription. Tr. 462.
Finally, the record does not support the treating physicians' assessments in regard to
Plaintiff having experienced repeated episodes of decompensation, each of extended duration as
defined by the relevant regulations. "Episodes of decompensation" are
exacerbations or temporary increases in symptoms or signs accompanied by a loss
of adaptive functioning, as manifested by difficulties in performing activities of
daily living, maintaining social relationships, or maintaining concentration,
persistence, or pace. Episodes of decompensation may be demonstrated by an
exacerbation in symptoms or signs that would ordinarily require increased
treatment or a less stressful situation (or a combination of the two). Episodes of
decompensation may be inferred from medical records showing significant
alteration in medication; or documentation of the need for a more structured
psychological support system (e.g. hospitalizations, placement in a halfway house,
or a highly structured and directing household); or other relevant information in
the record about the existence, severity, and duration of the episode.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00C4. "Repeated episodes of decompensation, each of
extended duration" means "three episodes within 1 year, or an average of once every 4 months,
each lasting for at least 2 weeks." Id.
Dr. Lion's and Dr. Song's March 2010 mental functional capacity assessments indicate a
lack of understanding regarding the "episodes of decompensation" criterion. Both opined that
Plaintiff had "marked" limitations in episodes of decompensation, but the regulations make clear
that episodes of decompensation are characterized as either none, one or two, three, or four or
more. 20 C.F.R. §§ 404.1520a(c)(4), 916.920a(c)(4).
The assessment they provided in April 2010 used the correct characterization, assessing
Plaintiff as having had four or more episodes of decompensation within a twelve-month period,
each of which was at least two weeks duration. Tr. 466. As indicated, the record shows that Dr.
22 - OPINION & ORDER

Song increased Plaintiff's Prozac on two occasions - once in December 2009 and another in late
March 2010. Even assuming these were "significant" increases in medication sufficient to
establish them as episodes of decompensation, there were only two, not three or four or more in a
twelve-month period. And while the record suggests that Plaintiff's depression may have
impacted her performance of activities of daily living, her maintenance of social relationships, or
her maintaining concentration, persistence, or pace, the record does not support that these
amounted to "episodes of decompensation" requiring an increase in treatment or other
intervention, other than the two instances of increased Prozac dosage.
Even without an objective record supporting the treating physicians' mental residual
functional capacity assessments, the ALJ still gave some weight to their opinions, consistent with
what the ALJ concluded the record allowed. Thus, the ALJ restricted Plaintiff to "simple,
routine, repetitive work involving only simple work-related decisions and routine workplace
changes." Tr. 21. He also allowed that she would be "off-task five minutes out of each hour"
and limited her to a "stress level of no more than eight on a scale of one to ten." Id.
The ALJ provided specific and legitimate reasons for discounting the mental residual
functional capacity assessments of Dr. Lion and Dr. Song. The ALJ accounted for the limitations
supported by the record.
Plaintiff argues that the ALJ erred by not considering the combined effect of her physical
and mental impairments. In support, she cites Lester, 81 F.3d at 829-30. There, the court
considered the ALJ's responsibility at step three in determining whether the claimant has a listed
impairment and concluded that because the consequences of the Lester claimant's physical and
mental impairments were "inextricably linked," the Commissioner was required to consider
23 - OPINION & ORDER

whether those impairments "taken together result in limitations equal in severity to those
specified by the listings." Id. at 829-30. Lester does not support Plaintiff's argument that in
determining Plaintiff's functional limitations at step four, the ALJ is required to consider the
combined effects of a claimant's impairments.
Moreover, given that Plaintiff's treating practitioners stated that Plaintiff's physical and
psychological impairments went "hand in hand," their assessments of her limitations presumably
accounted for the combined effect of her impairments. Nonetheless, the ALJ gave specific and
legitimate reasons supported by substantial evidence in the record in rejecting some or all of their
functional limitations. Nothing more was required.
II. Medication Side Effects
Plaintiff argues that the ALJ erred because he failed to take into account side effects of
her medications which affect her functional abilities. The ALJ must consider medication side
effects in the disability determination process because, like pain and other symptoms, side effects
can significantly impact an individual's ability to work. Varney v. Sec'y of Health and Human
Servs., 846 F.2d 581, 585 (9th Cir. 1988).
In July 2009, Plaintiff told Dr. Song that Percocet upset her stomach. Tr. 304. He
substituted other medications in its place. Id. In March 2010, she told Dr. Lyon that tramadol
was making her feel "somewhat altered" and sleepy. Tr. 433. He substituted a different
medication in its place. Id. These are the only references I could find in the chart notes of
Plaintiff complaining about a medication side effect.
Nonetheless, in their April 19, 2010 assessment of Plaintiff's limitations, her treating
physicians opined that oxycodone made Plaintiff dizzy, and that Prozac and Trazodone made her
24 - OPINION & ORDER

drowsy and tired. But, as the ALJ noted, Plaintiff reported in several disability-related
documents that these medications caused no side effects. Tr. 23 (citing Tr. 189 (listing several
medications prescribed by Dunes Family Healthcare including Prozac and Trazadone and listing
"none" for each one in response to the question of whether the medication caused any side
effects); Tr. 201 (same, but list included oxycodone as well); Tr. 195 (same, except column for
side effects is left blank rather than completed with the word "none"; medications included
Prozac, Trazadone, and oxycodone)); see also Tr. 260-61 (Aug. 2010 report in which Plaintiff
listed "none" for side effects of Prozac, Trazadone, and oxycodone). Plaintiff's hearing testimony
was also equivocal in that when asked if she had any side effects from medications, she
responded: "I don't know, like I said my attention span is not real good anymore. I'm gaining
weight I imagine, I don't know if that's contributed to the pills, depression or what." Tr. 48.
The record supports the ALJ's conclusion that Plaintiff uses a number of medications
without reported side effects. The ALJ did not err in refusing to consider medication side effects
in his RFC.
III. Lay Witness Testimony
Plaintiff's friend Christina Branson submitted a written Function Report dated January 2,
2010. Tr. 228-35. There, Branson described (1) Plaintiff's daily activities, (2) how Plaintiff's
injuries or conditions affect her, (3) what Plaintiff can do in regard to personal care, meals,
housework, yard work, getting around, and shopping, (4) whether Plaintiff can handle money, (5)
Plaintiff's hobbies and interests, (6) Plaintiff's social activities, and (7) other information about
Plaintiff's abilities. Id. Generally, she described Plaintiff as being severely limited in her
activities because of her pain, although she did note that Plaintiff goes to town for doctor visits
25 - OPINION & ORDER

and grocery shopping. Id.; Tr. 230.
The ALJ discussed Branson's testimony and concluded that it did not establish Plaintiff's
disability and was instead consistent with the RFC reached by the ALJ. Tr. 24-25. Specifically,
he noted that the accuracy of her statements was questionable because as a lay person, she was
not medically trained to make "exacting observations as to dates, frequencies, types and degrees
of medical signs and symptoms, or of the frequency or intensity of unusual moods or
mannerisms[.]" Tr. 25. Second, he stated that because her report was based only on her
observation, it may not be accurate regarding Plaintiff's maximal capacities. Id. Third, he
discounted the accuracy of her report because of her close relationship with Plaintiff. Id. Fourth,
and what the ALJ indicated was "most important[]," the ALJ did not give great weight to
Branson's testimony because, like Plaintiff's statements, it was inconsistent with the medical
opinions and other evidence. Id.
An ALJ must give reasons "germane to the witness" when discounting the testimony of
lay witnesses. Valentine, 574 F.3d at 694. Only one germane reason is necessary to support the
rejection of a lay witness's testimony, even if other reasons are invalid. Id. (ALJ's error in
considering wife's relationship as reason for rejecting her statement was harmless because
remaining reasons were valid).
Disregarding the ALJ's reasons based on Branson's lack of medical training and the
closeness of her relationship with Plaintiff, the ALJ's rejection of Branson's testimony is still
supported by the reason he designated as "most important": inconsistency with the medical
opinions and other evidence. The ALJ had already spent several pages of his opinion discussing
why he discounted Plaintiff's subjective complaints. Tr. 22-25. Among the reasons given were
26 - OPINION & ORDER

that Plaintiff's subjective testimony was not supported by the objective medical evidence, was
inconsistent with her treatment history, and was inconsistent with her activities of daily living.
Tr. 22-24. Notably, Plaintiff does not challenge the ALJ's credibility determination in this
appeal. When the ALJ rejected Branson's statements, because, "like the claimant's," they were
unsupported by the medical opinions and other evidence he previously discussed, the ALJ
rejected Branson's statements because they were not supported by the objective medical
evidence, were inconsistent with Plaintiff's treatment history, and were inconsistent with
Plaintiff's activities of daily living. These are reasons germane to the witness and are supported
by the record as described above. The ALJ did not err in rejecting Branson's testimony.
CONCLUSION
The Commissioner's decision is affirmed.
IT IS SO ORDERED.
Dated this

day of

Marco A. Hernandez
United States District Judge

27 - OPINION & ORDER

, 2014