Riley v. Commissioner Social Security Administration
Filing
16
Opinion and Order - The Commissioner's decision is based on substantial evidence in the record, and the ALJ's decision that Plaintiff is not disabled is AFFIRMED. Signed on 7/26/2016 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MELISSA ANN RILEY,
Plaintiff,
Case No. 1:15-cv-01616-SI
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Commissioner of Social Security
Defendant.
Howard D. Olinsky, OLINSKY LAW GROUP, 300 South State Street, Suite 420, Syracuse, New
York, 13202; Mark A. Manning, 474 Willamette, #200, Eugene, OR 97401. Of Attorneys for
Plaintiff.
Billy J. Williams, United States Attorney, and Janice E. Hebert, Assistant United States
Attorney, UNITED STATES ATTORNEY’S OFFICE, DISTRICT OF OREGON, 1000 S.W. Third Avenue,
Suite 600, Portland, OR 97204-2902; Sarah Moum, Special Assistant United States Attorney,
OFFICE OF THE GENERAL COUNSEL, SOCIAL SECURITY ADMINISTRATION, 701 Fifth Avenue, Suite
2900 M/S 221A, Seattle, WA, 98104-7075. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Ms. Melissa Ann Riley (“Plaintiff”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her application
for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). For the
following reasons, the Commissioner’s decision is AFFIRMED.
PAGE 1 – OPINION AND ORDER
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
BACKGROUND
A. Plaintiff’s Application
Plaintiff filed an application for DIB and SSI on April 20, 2012, alleging disability
beginning June 20, 2010. AR 24. At the time of the initial filing, Plaintiff was 38 years old.
AR 83. Plaintiff alleged disability due to severe depression; sleep apnea; post traumatic stress
PAGE 2 – OPINION AND ORDER
disorder (“PTSD”); and back, neck, and shoulder problems. AR 218. The Commissioner denied
the claim initially and upon reconsideration; Plaintiff thereafter requested a hearing before an
Administrative Law Judge (“ALJ”). AR 24. An administrative hearing was held on
December 19, 2013, and the ALJ subsequently ruled that Plaintiff has not been disabled since the
alleged onset date of June 20, 2010. AR 44, 24. The Appeals Council denied Plaintiff’s request
for review, making the ALJ’s decision the final decision of the Commissioner. AR 1-5. Plaintiff
now seeks judicial review of that decision.
B. The Sequential Analysis
A claimant is disabled if he or she is 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). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1.
Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
PAGE 3 – OPINION AND ORDER
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
3.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
4.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
PAGE 4 – OPINION AND ORDER
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
First, the ALJ noted that Plaintiff met the insured status requirements of the Social
Security Act through December 31, 2015. AR 26. The ALJ then applied the sequential process.
AR 26-36. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since the alleged onset date of June 20, 2010. AR 26. At step two, the ALJ found that
Plaintiff has the following severe impairments: “lumbago [back pain] with bursitis [inflammation
of the fluid-filled sacks in the joints], obesity, myalgias [muscle pain] and myositis
[inflammation and degeneration of muscle tissue], obstructive sleep apnea, and depressive
disorder with anxiety.” Id. At step three, the ALJ concluded that Plaintiff does not have an
impairment or combination of impairments that meets or equals the requirements of a listed
impairment. AR 30. The ALJ found that Plaintiff has the RFC to perform light work with the
following limitations:
[Plaintiff] can lift and carry no more than 20 pounds at a time and
frequently lift or carry 10 pounds. She can stand and/or walk for
about 6 hours in an 8-hour workday. Pushing/pulling is unlimited
within weight restrictions listed. She can occasionally climb ramps
or stairs but should avoid climbing ladders, ropes, and scaffolds.
She can occasionally stoop, crouch, kneel, or crawl. She should
avoid concentrated (2/3 or more) exposure to unprotected heights
and use of moving machinery. She is capable of understanding,
remembering, and performing instructions for 1-4 step tasks. She is
capable of superficial social interaction with coworkers and
PAGE 5 – OPINION AND ORDER
supervisors in small group settings, and no more than occasional
superficial interaction with the general public.
AR 31.
In reaching this decision, the ALJ gave great weight to the opinion of the non-examining
state agency psychological consultant, Robert Henry, Ph.D. (AR 34), some weight to the opinion
of non-examining state agency medical consultant, Martin Kehrh, M.D. (AR 33), and little
weight to the mental capacity and RFC assessments of Jeff Sewing, Physician Assistant (“PA”)
(AR 29, 34). The ALJ also found Plaintiff’s statements about the “intensity, persistence and
limiting effects of [her] symptoms” not to be entirely credible based on the record. AR 33.
At step four, the ALJ determined that Plaintiff is capable of performing her past relevant
work as an office helper. AR 34. In addition, the ALJ obtained testimony from a vocational
expert (“VE”) about Plaintiff’s ability to perform other jobs that exist in the national economy.
AR 35-36. The VE testified that, based on Plaintiff’s age, education, work experience, and RFC,
Plaintiff would be able to work in a variety of other sedentary positions including as a document
preparer, bench hand, or sewing machine operator. Id. The ALJ thus made the alternative step
five finding that Plaintiff could work in positions that exist in significant numbers in the national
economy. AR 36. In conclusion, the ALJ found Plaintiff has not been under disability after the
alleged onset date of June 20, 2010. Id.
DISCUSSION
Plaintiff argues that the ALJ erred by: (A) improperly finding Plaintiff’s symptom
testimony not fully credible; (B) affording only little weight to the opinion of Mr. Sewing, PA;
and (C) posing an incomplete hypothetical question to the VE.
PAGE 6 – OPINION AND ORDER
A. Plaintiff’s Credibility
Plaintiff contends that the ALJ’s credibility determination was not supported by
substantial evidence.1 There is a two-step process for evaluating the credibility of a claimant’s
own testimony about the severity and limiting effect of the claimant’s symptoms. Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “First, the ALJ must 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.’” Lingenfelter v. Astrue, 504 F.3d
1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en
banc)). When doing so, “the claimant need not show that her impairment could reasonably be
expected to cause the severity of the symptom she has alleged; she need only show that it could
reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282
(9th Cir. 1996).
“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
1
The Court notes that, pursuant to Social Security Rule (“SSR”) 16-3p, the ALJ is no longer
tasked with making an overarching credibility determination and instead must assess whether the
claimant’s subjective symptom statements are consistent with the record as a whole. See SSR 163p, available at 2016 WL 1119029 (superseding SSR 96-7p). The ALJ’s February 2014 decision
was issued more than one year before SSR 16-3p became effective and there is no binding
precedent interpreting this new ruling, including whether it applies retroactively. Compare
Ashlock v. Colvin, 2016 WL 3438490, at *5 n.1 (W.D. Wash. June 22, 2016) (declining to apply
SSR 16-3p to an ALJ decision issued prior to the effective date), with Lockwood v. Colvin, 2016
WL 2622325, at *3 n.1 (N.D. Ill. May 9, 2016) (applying SSR 16-3p retroactively to a 2013 ALJ
decision). Because the ALJ’s findings in regard to this issue pass muster irrespective of which
standard governs, the Court need not resolve this issue.
PAGE 7 – OPINION AND ORDER
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons 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, 947 F.2d at 345-46).
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
parties with personal knowledge of the claimant’s functional limitations. Smolen, 80 F.3d
at 1284. The Commissioner recommends assessing the claimant’s daily activities; the location,
duration, frequency, and intensity of the individual’s pain or other symptoms; factors that
precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other
than medication, the individual receives or has received for relief of pain or other symptoms; and
any measures other than treatment the individual uses or has used to relieve pain or other
symptoms. See Social Security Rule (“SSR”) 16-3p, available at 2016 WL 1119029 (retaining
the same factors for the for the ALJ to consider in his credibility determination as SSR 96-7p).
The ALJ may not, however, make a negative credibility finding “solely because” the claimant’s
symptom testimony “is not substantiated affirmatively by objective medical evidence.” Robbins,
466 F.3d at 883.
Further, the Ninth Circuit has said that an ALJ also “may consider . . . ordinary
techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent
statements concerning the symptoms, . . . other testimony by the claimant that appears less than
candid[,] [and] unexplained or inadequately explained failure to seek treatment or to follow a
prescribed course of treatment . . . .” Smolen, 80 F.3d at 1284. The ALJ’s credibility decision
PAGE 8 – OPINION AND ORDER
may be upheld overall even if not all of the ALJ’s reasons for rejecting the claimant’s testimony
are upheld. See Batson, 359 F.3d at 1197.
At the hearing, Plaintiff testified that she is unable to work due to her frequent need to
rest, her headaches and nausea, her physical pain, her mental health problems, and her sleep
apnea. AR 57-67. Plaintiff stated that she does work around the house, but can only do so for 10
or 15 minutes before she needs a 15-minute break. AR 57-58. She declared that she spends about
60 percent of the day taking naps or lying down. AR 60. Plaintiff also testified that she avoids
social functions because they trigger her anxiety. AR 58. She stated that when she is around five
or more people her heart races, she gets shaky, and she feels stressed out. AR 59. To stop the
symptoms, Plaintiff removes herself from the situation. Id. Plaintiff testified that she has been
diagnosed with major depressive disorder, anxiety, and PTSD, and that she sees a therapist for
these mental health issues. AR 65. She stated that she experiences meltdowns every day where
she cries, and that she yells at her boyfriend and children. AR 67. Plaintiff also testified that she
experiences pain in her entire body about 50 percent of the time, and that she has been diagnosed
with fibromyalgia. AR 60-61. Plaintiff stated that she has migraine headaches about once a
month, but also suffers from other headaches on a regular basis. AR 62-63. Finally, Plaintiff
discussed her sleep apnea, which makes it hard for her to stay awake or concentrate. AR 65.
The ALJ found that the back pain, obesity, muscle pain, sleep apnea, and depressive
disorder with anxiety were severe impairments, and that the “impairments could reasonably be
expected to cause the alleged symptoms.” AR 26, 33. Nevertheless, the ALJ found Plaintiff’s
“statements concerning the intensity, persistence and limiting effects of these symptoms” not
entirely credible. AR 33.
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Plaintiff argues that the ALJ “failed to engage in any discussion of [the] factors” listed in
20 C.F.R. §§ 404.1529(c)(1)-(3); 416.929(c)(1)-(3) in making his credibility determination. The
Court disagrees. The ALJ explicitly noted that he considered these factors in evaluating
Plaintiff’s testimony, and gave specific reasons for rejecting Plaintiff’s testimony. AR 32-33.
The ALJ pointed to: (1) inconsistencies between Plaintiff’s allegation that she experiences daily
“meltdowns” and panic attacks in the presence of five or more people and her statements to her
providers; (2) inconsistencies between Plaintiff’s testimony about her depression and anxiety and
her mental health treatment notes; (3) the inconsistency between the number of injections
Plaintiff alleged she received for migraines in one year and the actual number of injections
received; (4) inconsistencies between Plaintiff’s testimony about her sleep schedule and the
record; and (5) Plaintiff’s reason for ending her previous employment and her continued search
for employment.
Plaintiff only cites evidence in opposition to one of these reasons—the inconsistency
involving the injections. The Court analyses each of the reasons given by the ALJ.
1. Meltdowns and Panic Attacks
The ALJ first discussed Plaintiff’s testimony that she gets panic attacks in groups of
people and has “meltdowns” every day, observing that mental health treatment records from
Klamath Open Door (“KOD”) and the Klamath County Mental Health (“Klamath County”)
showed “relatively brief periods of difficulties that improve with treatment.” AR 33. In
July 2009, Plaintiff discussed her meltdowns with her therapist. AR 382. By August 2009,
Plaintiff’s therapist at KOD noted that Plaintiff was no longer having these meltdowns, and that
she was better able to concentrate. AR 379. Similarly, March 2012 records from Klamath County
include Plaintiff’s report that she had difficulty getting out of bed and was excessively tearful.
AR 271. By June 2013, her mood was improved and she was no longer crying all the time. AR
PAGE 10 – OPINION AND ORDER
517. In these records, there is no mention of Plaintiff experiencing panic attacks around groups
of people.
An ALJ may consider “prior inconsistent statements concerning the symptoms” in
making a credibility determination. Smolen, 80 F.3d at 1284. Plaintiff’s testimony about her
panic attacks was not corroborated by the record, and her statements about daily meltdowns are
not entirely in line with her mental health treatment notes. The ALJ thus provided a clear and
convincing reason for rejecting Plaintiff’s credibility.
2. Depression and Anxiety Symptoms
The ALJ also reviewed Plaintiff’s mental health record generally and concluded that
Plaintiff has “experienced some waxing and waning of her mental health symptoms,” but has
generally responded well to treatment. AR 33. Although Plaintiff testified that she receives
treatment for depression and anxiety, the ALJ observed that that Plaintiff’s symptoms were
described as “situational” in 2010. AR 354. Additionally, when she returned to mental health
treatment at KOD after seven months without medication, Plaintiff was focused on anger as her
main problem, and did not mention anxiety or depression. AR 341. By August 2011, Plaintiff’s
therapist discussed the termination of their treatment relationship because Plaintiff “made steady
improvement and [was] now able to state her needs.” AR 320. The ALJ noted that Plaintiff
sought additional treatment with Klamath County in 2012, and by October of that year came in
simply for a medication refill as she reported “no problems.” AR 416. Finally, the ALJ noted that
Plaintiff was “doing well” psychologically after she experienced a miscarriage. AR 616.
As the ALJ stated, the Ninth Circuit has held that “it is error to reject a claimant’s
testimony merely because symptoms wax and wane in the course of treatment.” Garrison v.
Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). As early as November 2009, Plaintiff reported
missing work due to her depression and anxiety. AR 372. Her mood improved in
PAGE 11 – OPINION AND ORDER
December 2009, but in January 2010 she became tearful when discussing her deceased father
and sister. AR 370, 369. She reported being badly depressed in May 2010, and when she
returned to Oregon in 2011 described her constant sadness to her therapist. AR 353, 342.
Symptoms of depression reappeared regularly through the rest of 2011. AR 330, 328, 320, 307.
In August 2012, Plaintiff was described as “[n]egative for depression” (AR 432), but by
April 2013 Plaintiff had multiple stressors in her life and she presented as “depressed and
tearful” (AR 522).
An ALJ may not “cherry pick” from mixed results. See Oshodi v. Holder, 729 F.3d 883,
893 (9th Cir. 2013). Plaintiff’s symptoms have indeed waxed and waned over the course of
several years, and her depressed periods cannot be ignored. The ALJ focused on the evidence
describing Plaintiff’s improvements, and did not evaluate the extensive evidence involving her
symptoms of depression. Accordingly, the ALJ’s conclusion that Plaintiff’s testimony regarding
her depression and anxiety is contradicted by her treatment records is not supported by
substantial evidence in the record and is therefore not a clear and convincing reason to reject
Plaintiff’s testimony.
3. Injections
At the hearing in December 2013, Plaintiff testified that she had gone to the ER and
received a shot for migraine pain about four times in the previous year. AR 63. The ALJ noted,
however, that Plaintiff only ever received one injection from the ER, and that had been a year
and a half before the hearing, in June 2012. AR 33, 600-01. Plaintiff points to three other
instances when she received an injection for migraine symptoms. In May 2011, Dr. Brandon
Chase administered a Toradol injection to Plaintiff for her migraine. AR 334-37. There is a note
from November 2011 in the KOD records that Plaintiff “tolerated [the] injection well,” although
PAGE 12 – OPINION AND ORDER
the type of injection is not specified. AR 307. Finally, in April 2012, Plaintiff received a Toradol
injection at KOD for a headache lasting two days. AR 282.
The ALJ is allowed to consider “ordinary techniques of credibility evaluation” in
determining Plaintiff’s credibility, including “testimony by the claimant that appears less than
candid.” Smolen, 80 F.3d at 1284. Plaintiff’s statement about the number of injections received at
the ER for migraine symptoms was not entirely accurate, yet it was not necessarily “less than
candid.” Plaintiff testified that she went to the ER for a migraine shot “probably about four
times” in the year leading up to the hearing. AR 63. Her testimony shows that she wasn’t sure
about the number of times, and merely gave her best guess. In addition, Plaintiff had received at
least three injections for migraine headaches in the three years prior to the hearing, although they
were not all received at the ER. The discrepancy between Plaintiff’s testimony and the number of
injections is not a clear and convincing reason for discrediting Plaintiff.
4. Sleep Schedule
The ALJ next discounted Plaintiff’s testimony based on a supposed discrepancy between
her testimony about napping and the record. Specifically, the ALJ noted that Plaintiff “testified
to needing to nap every day at least 4-5 hours due to her sleep apnea and fibromyalgia.” AR 33.
At the hearing, Plaintiff stated that she spends “about 60 percent” of the day either
napping or lying down. AR 60. Plaintiff did not testify that she spends four or five hours napping
in particular—she only noted that she sleeps “a lot.” Id. The ALJ did not have a means of
determining how much of the “60 percent” Plaintiff spends napping versus simply lying down.
The ALJ cited treatment records as inconsistent with Plaintiff’s testimony because although she
complained of fatigue, there was “no mention of the level of napping she testified to at the
hearing.” AR 33. The Court finds that the records are not inconsistent with Plaintiff’s statements
at the hearing. In February 2013, Plaintiff complained of “more fatigue,” although she did not
PAGE 13 – OPINION AND ORDER
say how many hours she spent napping each day. AR 621. In August 2013, Plaintiff did specify
that she naps between one and four hours daily. AR 608. The ALJ found that there was no
complaint by Plaintiff of “needing to nap 3-4 hours a day” even before she began sleep apnea
treatments, but records from the Klamath Sleep Medicine Center, which the ALJ cited, directly
contradict this statement. At Plaintiff’s initial consultation for sleep problems in January 2012,
she specifically told Dr. David Panossian that she “naps daily for 2-4 hours.” AR 500.
The ALJ interpreted Plaintiff’s “60 percent” statement to include four or five hours of
napping daily, which is not necessarily an accurate reflection of Plaintiff’s testimony. In
addition, the ALJ misstated the record regarding Plaintiff’s napping schedule before she began
sleep apnea treatments. The ALJ’s conclusion that there is a contradiction between Plaintiff’s
statements regarding her need to take naps and her treatment records is not supported by
substantial evidence in the record. Accordingly, it does not constitute a clear and convincing
reason for finding Plaintiff not credible.
5. Employment Developments
The ALJ considered it “significant” that Plaintiff stopped working because she moved to
Illinois and not because of any work-related impairment. AR 33, 352. The ALJ noted that
Plaintiff continued to look for work in March 2011, nine months after the alleged disability onset
date of June 20, 2010, and only stopped her search because she had no gas or car insurance.
AR 33, 344-45, 322-23.
Evidence that a claimant was no longer working for reasons other than the alleged
impairment may provide reason for an ALJ to discredit that plaintiff’s testimony. See Harrelson
v. Astrue, 273 F. App’x 632, 634 (9th Cir. 2008) (finding that the ALJ did not err in discrediting
the plaintiff’s pain testimony because she quit work for religious reasons rather than due to an
impairment); see also Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (among the
PAGE 14 – OPINION AND ORDER
“specific, cogent reasons” for disregarding the plaintiff’s testimony were his statements that he
was laid off, not injured), as amended (Nov. 9, 2001); Carroll v. Colvin, 2014 WL 4102314, at
*7 (D. Or. Aug. 18, 2014) (holding that the ALJ was “entitled to reject” the plaintiff’s symptom
testimony because he stopped working after he was laid off, not due to his allegedly disabling
conditions).
At the time Plaintiff quit her job, she stated that she hoped “job opportunities [would] be
better” in Illinois. AR 352. She later returned to Oregon and attempted to return to school, but
that only lasted approximately a week. AR 345. In March 2011, Plaintiff reported that she
continued to look for work, and in May 2011 Plaintiff had an application in at a hotel. AR 345,
338. Plaintiff did not, however, reach out to her former Oregon employer to see if she could be
rehired. AR 345. The ALJ considered the record and presented substantial evidence for
discrediting Plaintiff’s testimony. Because the Plaintiff quit work in order to move to Illinois
rather than for an alleged impairment, the ALJ provided a clear and convincing reason for
discounting Plaintiff’s credibility.
6. Conclusion
Although not all of the reasons provided by the ALJ in discrediting Plaintiff’s testimony
were supported by substantial evidence, the ALJ provided two clear and convincing reasons.
Because the ALJ provided two valid reasons, the ALJ did not err in evaluating Plaintiff’s
credibility. Batson, 359 F.3d at 1197.
B. The Opinion of Mr. Sewing
Plaintiff argues that the ALJ erred by discounting the opinion of Mr. Sewing, PA. The
Commissioner counters that the ALJ provided a germane reason for discounting Mr. Sewing’s
opinion and hence did not err.
PAGE 15 – OPINION AND ORDER
SSR 06-03p defines “acceptable medical sources” as licensed physicians, licensed or
certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech
pathologists. Health care providers who are not “acceptable medical sources,” such as “nurse
practitioners, physician’s assistants, chiropractors, audiologists, and therapists,” are still
considered “medical sources” under the regulations, and the ALJ can use these other medical
source opinions in determining the “severity of [the individual’s] impairment(s) and how it
affects [the individual’s] ability to work.” 20 C.F.R. § 404.1513(d). Because Mr. Sewing is a
physician’s assistant, he is considered an “other” medical source.
An ALJ may not reject the competent testimony of other medical sources without
comment. Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006). To reject the competent
testimony of other medical sources, the ALJ need only give “reasons germane to each witness for
doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Turner v. Comm’r of
Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)). In rejecting such testimony, the ALJ need not
“discuss every witness’s testimony on an individualized, witness-by-witness basis. Rather, if 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.” Id. at 1114. The ALJ also
may “draw inferences logically flowing from the evidence.” Sample v. Schweiker, 694 F.2d 639,
642 (9th Cir. 1982).
Other medical sources are a type of lay testimony, and an ALJ errs by failing to “explain
her reasons for disregarding . . . lay witness testimony, either individually or in the aggregate.”
Molina, 674 F.3d at 1115 (quoting Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)). This
error may be harmless “where the testimony is similar to other testimony that the ALJ validly
discounted, or where the testimony is contradicted by more reliable medical evidence that the
PAGE 16 – OPINION AND ORDER
ALJ credited.” See id. at 1118-19. Additionally, “an ALJ’s failure to comment upon lay witness
testimony is harmless where ‘the same evidence that the ALJ referred to in discrediting [the
claimant’s] claims also discredits [the lay witness’s] claims.’” Id. at 1122 (quoting Buckner v.
Astrue, 646 F.3d 549, 560 (8th Cir. 2011)). Where an ALJ ignores uncontradicted lay witness
testimony that is highly probative of the claimant’s condition, “a reviewing court cannot consider
the error harmless unless it can confidently conclude that no reasonable ALJ, when fully
crediting the testimony, could have reached a different disability determination.” Stout, 454 F.3d
at 1056.
The ALJ analyzed the mental capacity assessment (“MCA”) and residual functional
capacity questionnaire (“RFCQ”) that Mr. Sewing completed on August 20, 2013. Among other
determinations, Mr. Sewing found that Plaintiff could lift and carry less than ten pounds
frequently, that she could sit for 20 minutes at a time for a total of four hours in an eight-hour
workday, and that she could stand or walk for 20 minutes at a time for a total of two hours in an
eight-hour workday. AR 641. Mr. Sewing also determined that Plaintiff would require breaks in
excess of the regularly scheduled breaks, and that Plaintiff would likely miss four or more days
per month of work. AR 638, 641-42. The ALJ gave Mr. Sewing’s opinions in the MCA and
RFCQ little weight based on three main reasons:2 (1) at the time he made his findings,
Mr. Sewing did not perform a physical examination of the Plaintiff; (2) when Mr. Sewing
performed a physical examination at a later appointment, the exam was fairly unremarkable; and
2
The ALJ also stated that Mr. Sewing is not an acceptable medical source as defined in 20
C.F.R. §§ 404.1513, 416.913. As explained by the Court, Mr. Sewing’s status as an “other”
medical source requires that the ALJ only need provide a germane reason for discrediting
Mr. Sewing’s opinion. Mr. Sewing’s status is not, in and of itself, a germane reason to discount
his opinion.
PAGE 17 – OPINION AND ORDER
(3) Mr. Sewing’s opinion was based on Plaintiff’s self-report. The Court addresses each reason
in turn.
1. Lack of Physical Examination on Evaluation Date
The ALJ found it significant that at the time Mr. Sewing completed the MCA and RFCQ,
Mr. Sewing did not perform a physical examination of Plaintiff. AR 34. Instead, Mr. Sewing
reported that Plaintiff had fibromyalgia with an elevated CRP (C-reactive protein), which could
have been caused by her pregnancy earlier in the year. AR 608. Mr. Sewing did, however,
perform a 40-minute evaluation of Plaintiff in order to determine her “disability potential.” Id.
Mr. Sewing’s treatment notes and 40-minute evaluation were sufficient to evaluate Plaintiff’s
mental health, as a physical examination would have no bearing on this assessment. Regarding
Mr. Sewing’s evaluation of Plaintiff’s physical abilities, although Mr. Sewing did not conduct a
physical examination on that day, he had evaluated Plaintiff’s physical symptoms and limitations
multiple times in the months leading up to August 20, 2013. See AR 618-19, 620-21, 622-23.
The Court is skeptical that a lack of physical examination on the date of evaluation by a treating
provider who had previously performed several physical examinations qualifies as a germane
reason for rejecting that evaluation. ALJs often give great weight to reviewing physicians who
never have the ability to examine a claimant. Notably, the ALJ in this case gave the opinion of
Dr. Henry great weight despite its lack of contemporaneous examination—or for that matter, any
examination at any point—of Plaintiff. AR 34. Nevertheless, the Court does not need to
determine whether a lack of contemporaneous examination is a germane reason because the ALJ
gave a different germane reason for discounting Mr. Sewing’s opinion.
2. Subsequent Physical Examination
The ALJ noted that when Mr. Sewing performed a physical examination of Plaintiff one
month after Mr. Sewing completed his RFCQ, the exam was “fairly unremarkable other than
PAGE 18 – OPINION AND ORDER
some tender muscles, with normal strength, sensation, and range of motion.” AR 34. In Mr.
Sewing’s functional limits assessment conducted on September 24, 2013, he determined that
Plaintiff had tenderness in some areas, but no joint swelling or heat. AR 633. Fibromyalgia’s
symptoms, however, are subjective. Rollins v. Massanari, 261F.3d853, 855 (9th Cir. 2001).
“Common symptoms . . . include chronic pain throughout the body, multiple tender points, fatigue,
stiffness, and a pattern of sleep disturbance that can exacerbate the cycle of pain and fatigue
associated with this disease.” Benecke v. Barnhart, 379 F.3d 587, 589-90 (9th Cir. 2004). The
American College of Rheumatology created a set of diagnostic criteria in 1990, but there are no
laboratory tests able to confirm a diagnosis of fibromyalgia. Id. at 590.
Since early 2013, Plaintiff consistently complained of pain throughout her entire body, as
well as tenderness in the joints. See AR 623-24, 621-22, 619-20, 628-29, 634-35. As such, the Court
does not view a single “unremarkable” examination as a germane reason for the ALJ to discredit
Mr. Sewing’s mental capacity and RFC assessments.
3. Plaintiff’s Self-Report
The ALJ also considered it “clear” that Mr. Sewing based his opinion on Plaintiff’s selfreport. AR 34. Plaintiff told Mr. Sewing in her evaluation on August 20, 2013 that she would
“probably miss” four or more days of work per month. AR 608. In both the MCA and the RFCQ,
Mr. Sewing reported that Plaintiff would have four or more absences per month from work.
AR 638, 642. Similarly, in Mr. Sewing’s RFCQ, he indicated that Plaintiff can only sit for 20
minutes at a time and stand or walk for 20 minutes at a time (AR 641), while Plaintiff stated at
the administrative hearing that she is able to do activities around the house for 10 or 15 minutes
at a time before she needs to rest (AR 58). Mr. Sewing does not identify any objective basis for
these conclusions, and they appear to be solely based on Plaintiff’s self report. The fact that
Mr. Sewing relied on Plaintiff’s subjective statements when Plaintiff has not been found entirely
PAGE 19 – OPINION AND ORDER
credible is a germane reason for giving little weight to these opinions. Molina, 674 F.3d at 111415. Thus, the ALJ did not err in giving little weight to Mr. Sewing’s opinion in the MCA and
RFCQ.
C. Question Posed to the Vocational Expert
Plaintiff argues that the ALJ posed an incomplete hypothetical question to the VE based
on a failure to afford the proper weight to the opinion of Mr. Sewing. As determined above,
however, the ALJ provided a germane reason for giving little weight to Mr. Sewing’s MCA and
RFCQ opinions. The ALJ consequently properly limited the hypothetical “to those impairments
that are supported by substantial evidence in the record,” and did not err. Osenbrock v. Apfel, 240
F.3d 1157, 1165 (9th Cir. 2001) (citing Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir.
1989)).
CONCLUSION
The Commissioner’s decision is based on substantial evidence in the record, and the
ALJ’s decision that Plaintiff is not disabled is AFFIRMED.
IT IS SO ORDERED.
DATED this 26th day of July, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 20 – OPINION AND ORDER
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