Hanlon v. Commissioner Social Security Administration
Opinion and Order. Signed on 9/6/2017 by Judge Malcolm F. Marsh. (ma2)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 1:16-cv-01822-MA
COMMISSIONER SOCIAL SECURITY
JAMES J. GANNON
United Disability Lawyers Group
21822 Sherman Way, Suite 200
Canoga Park, CA 91303
LISA R. J. PORTER
JP Law PC
5200 S.W. Meadows Rd., Suite 150
Lake Oswego, OR 97035
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
District of Oregon
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
P01iland, OR 97204-2902
1 - OPINION AND ORDER
OPINION AND ORDER
JORDAN D. GODDARD
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Ave., Suite 2900, MIS 221A
Seattle, WA 98104-7075
Attorneys for Defendant
Plaintiff Sheila Hanlon seeks judicial review of the final decision of the Commissioner of
Social Security denying her application for a period of disability and disability insurance benefits
("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403, and application for
Supplemental Security Income ("SSI") disability benefits under Title XVI ofthe Social Security Act,
42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). For the reasons that follow, the Comi affirms the Commissioner's decision.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffprotectively filed DIB and SSI applications onFebrnmy28, 2013, alleging disability
beginning December 30, 2008, due to acute rheumatoid atihritis, depression, abdominal pain, chest
pain, and migraines. Tr. Soc. Sec. Admin. R. ("Tr.") at 82, ECF No. 13. Plaintiffs claims were
denied initially and upon reconsideration.
Plaintiff filed a request for a hearing before an
administrative law judge ("ALJ"). The ALJ held a hearing on Janumy 13, 2015, at which Plaintiff
appeared with her attorney and testified. A vocational expert, Frank Lucas, also appeared at the
hearing and testified. On Febrna1y 24, the ALJ issued an unfavorable decision. The Appeals
Council denied Plaintiffs request for review, and therefore, the ALJ' s decision became the final
decision of the Commissioner for purposes of review.
2 - OPINION AND ORDER
Plaintiff was born in 1961, and was 4 7 years old on the alleged onset of disability date, and
53 years old at the time of the ALJ's decision. Plaintiff has a high school education, attended a
college of cosmetology, and has past relevant work as a rental agent, waitress, and travel consultant.
Tr. 57, 72, 223.
THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for detetmining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920.
Each step is potentially dispositive. The claimant bears the burden of proof at steps one through
four. See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett
v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the bmden shifts to the Commissioner
to show that the claimant can do other work that exists in the national economy. Hill v. Astrue, 698
F.3d 1153, 1161 (9th Cir. 2012).
The ALJ found that Plaintiff meets the insured status requirements through September 30,
2015. At step one, the ALJ found that Plaintiff has engaged in substantial gainful activity from
January 1, 2009 through December 31, 2009. 1 At step two, the ALJ found that Plaintiff had the
following severe impairments: degenerative disc disease of the lumbar and cervical spine, psoriatic
atihritis, and fibromyalgia. At step three, the ALJ found that Plaintiffs impairments, or combination
of impairments, did not meet or medically equal a listed impairment.
The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perfotm sedentary
work with additional limitations: Plaintiff is limited to occasional climbing oframps and stairs, but
Plaintiff earned well above the level of substantial gainful activity in 2009. Tr. 19.
Plaintiff did not amend her alleged onset date at the hearing. Tr. 51-53.
3 - OPINION AND ORDER
no climbing ofladders, ropes, and scaffolds. Plaintiff has no limitations in balancing and stooping,
but she can never kneel, crouch, or crawl. Finally, Plaintiff is limited to no exposure to extreme cold
or hazards such as work at unprotected heights or around moving mechanical patis. Tr. 22.
At step four, the ALJ found that Plaintiff is capable of performing her past relevant work as
a travel consultant. Accordingly, the ALJ concluded that Plaintiff has not been under a disability
under the Social Security Act from December 30, 2008 through the date of the decision.
ISSUES ON REVIEW
On appeal to this coU1i, Plaintiff contends the following errors were committed: (1) the ALJ
improperly evaluated her testimony; (2) the ALJ improperly evaluated the opinions of her treating
rheumatologist, W. Clay McCord, M.D; and (3) the ALJ improperly evaluated the lay testimony of
her friend, Mary Johnson. The Commissioner argues that the ALJ' s decision is supp01ied by
substantial evidence and is free oflegal error. Alternatively, the Commissioner contends that even
if the ALJ erred, Plaintiff has not demonstrated harmful error.
STANDARD OF REVIEW
The district COU1i must affirm the Commissioner's decision if the Commissioner applied
proper legal standards and the findings are supp01ied by substantial evidence in the record. 42
U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is
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." Hill, 698 F.3d at 1159 (internal quotations
omitted); Valentine, 574 F.3d at 690. The cou1imust weigh all the evidence, whether it supports or
detracts from the Commissioner's decision. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014);
ivfartinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be
4 - OPINION AND ORDER
upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v.
Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence suppo1is the
Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its
judgment forthat of the Commissioner." Edlundv. }vfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001 );
Garrison, 759 F.3d at 1010.
The ALJ Did Not Err in Discounting Plaintiffs Credibility
To determine whether a claimant's testimony regarding subjective pain or symptoms is
credible, an ALJ must perform two stages of analysis. 20 C.F.R. §§ 404.1529, 416.929. The first
stage is a threshold test in which the claimant must produce objective medical evidence of an
underlying impairment that could reasonably be expected to produce the symptoms alleged. }vfolina
v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasettiv. Astrue, 533 F.3d 1035, 1039 (9th Cir.
2008). At the second stage of the credibility analysis, absent affomative evidence of malingering,
the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony
regarding the severity of the symptoms. Carmickle v. Commissioner Soc. Sec. Adm in., 533 F.3d
1155, 1166 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
The ALJ must make findings that are sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763
F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors the ALJ may consider when
making such credibility dete1minations include the objective medical evidence, the claimant's
treatment hist01y, the claimant's daily activities, inconsistencies in testimony, effectiveness or
5 - OPINION AND ORDER
adverse side effects of any pain medication, and relevant character evidence. 2 Ghanim, 763 F.3d at
1163; Tommasetti, 533 F.3d at 1039.
At the hearing, Plaintiff testified that she attended cosmetology school from 2011 to 2012
to learn to cut and style hair, and that she attended classes for five hours each day. Tr. 57. Plaintiff
described that her time was mostly in the classroom, but she also cut, styled, and permed hair for
approximately 30 minutes each time. Tr. 58. Plaintiff further testified that for one month in 2011,
she worked as a batiender full-time while also attending cosmetology school. Tr. 58.
Plaintiff testified that her primaiy medication is Enbrel, which she injects herself once per
week. Tr. 62. Plaintiff stated that she also takes Aleve. Tr. 63. Plaintiff testified that her arthritis
and low back pain are the worst. Tr. 64. Plaintiff stated that if she sits for too long in one position,
she develops migraine headaches, and that she experiences migraine headaches eve1y day. Tr. 65,
67. Plaintiff testified that she takes Vicodin for pain due to her fibromyalgia, but it does not interfere
with her concentration. Tr. 67. Plaintiff testified that she suffers from gastrointestinal issues, and
that she will not leave the house ifher stomach is bothering her. Tr. 69-70. Plaintiff testified that
she since she stopped working as a bartender and finished school, her psoriatic arthritis has
deteriorated so much that she is essentially bedridden. Tr. 66. Plaintiff testified that she could not
The Comi observes that on March 28, 2016, Social Security Ruling ("SSR") 16-3p
became effective, and it eliminated the use of the te1m "credibility." The ALJ's decision in this
case was issued Februaty 24, 2015. The Comi has previously determined that SSR 16-3p does
not apply retroactively because 42 U.S.C. § 405(g) does not contain any express authorization
from Congress allowing the Commissioner to engage in retroactive rulemaking. Smith v. Colvin,
No. 6:15-cv-01625-MA, 2017 WL 388814, at *4 n.2 (D. Or. Jan. 27, 2017). See, e.g., Wrightv.
Colvin, No. 15-cv-02495-BLF, 2017 WL 697542, *9 (N.D. Cal. Feb. 22, 2017) (holding SSR 163p does not apply retroactively); Thayer v. Colvin, No. 2:16-cv-00545-DWC, 2017 WL 132450,
at *7 (W.D. Wash. Jan. 13, 2017) (same). The Court adheres to that rationale here.
6 - OPINION AND ORDER
perfo1m sedentary work because she gets migraine headaches when sitting for longer than five
minutes, and she cannot lie in one position in bed for more than ten minutes. Tr. 65-67.
In an April 18, 2013 Function Report - Adult, Plaintiff described that her aiihritis makes it
difficult to complete personal care, but reported she can prepare food, complete laundry, and perform
housework. Tr. 232-33. Plaintiff stated that she drives, goes shopping once a week, and attends
church regularly. Tr. 233. Plaintiff stated that her impairments limit her ability to squat, bend, stand,
walk, sit, kneel, climb stairs, complete tasks, and use her hands. Plaintiff estimated that she can walk
half a city block. Plaintiff described no problems paying attention or following instructions. Tr. 235.
In the decision, the ALJ offered specific, clear and convincing reasons for the adverse
credibility dete1mination, including: (1) inconsistency with objective medical records; (2) pooreff01t
during examination; and (3) inconsistency with repo1ied daily activities.
Contradiction with the medical record is a relevant consideration in discounting a claimant's
credibility. Carmickle, 533 F.3d at 1161; see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.
2005) (holding that an ALJ may consider lack of medical evidence but it cannot be the only factor
supporting an adverse credibility finding); Rollins v.1vfassanari, 261F.3d853, 857 (9th Cir. 2001)
("While subjective ... testimony cannot be rejected on the sole ground that it is not fully
conoborated by objective medical evidence, the medical evidence is still a relevant factor in
dete1mining the severity of the claimant's symptoms and their disabling effects." (citing 20 C.F.R.
§ 404.1529( c)(2)).
The ALJ thoroughly discussed numerous objective treatment records that unde1mine
Plaintiffs subjective allegations of significant physical limitations. The ALJ detailed that Plaintiff
contended in her disability applications and her hearing testimony that she is most limited by her
7 - OPINION AND ORDER
back pain and atihritis, yet lumbar imaging revealed only mild diffuse disc space narrowing. Tr. 20,
64, 82, 221, 326. Additionally, the ALJ detailed that Plaintiffs physical examinations have
generally been nonnal. Tr. 23. The ALJ discussed that in early 2011, Plaintiff had intact sensation,
intact reflexes, intact motor strength, and no tenderness to palpitation, without evidence of atrophy
and no loss of tone. Tr. 23, 388-91. Records cited by the ALJ show little swelling due to her
psoriatic arthritis with Plaintiff reporting stiffness in her feet, ankles, and hips. Tr. 384, 388, 391.
As the ALJ co!Tectly indicated, examination findings in 2011 and early 2012 were similar, showing
that Plaintiffs gait was n01mal, with normal tone, and no atrophy. Tr. 378-87. The ALJ cited
records showing that in May 2012, Plaintiff had reduced psoriatic arthritis symptoms without skin
flares, and that Plaintiff complained of fibromyalgia pains, and that she was then working as a
waitress and in no distress. Tr. 378. The ALJ indicated that in September 2012, Plaintiff reported
that she had tenderness in her hands bilaterally, however, Plaintiff had a n01mal gait, normal tone,
and no atrophy. Tr. 374-75. As the ALJ accurately found, the bulk of Plaintiffs multi-system
examinations in2011and2012 reveal results withinno1mal limits. See, e.g., Tr. 374, 380, 382, 384,
386, 388, 390.
The ALJ also detailed that in early 2013, Plaintiff rated her fibromyalgia pain at a two of five,
other than her back pain. Tr. 23, 370. The record reveals that in Janumy 2013, Plaintiff complained
of headaches, myalgias, neck pain, a rash, and overall weakness. Tr. 370. Plaintiff indicated she was
receiving moderate relief from oral narcotics, rest, and Cymbalta. Tr. 370. As the ALJ detailed, in
May and July 2013, Plaintiffs examination revealed no focal weakness, normal coordination, intact
reflexes, and a normal gait. Tr. 23, 365. Records cited by the ALJ show Plaintiff had a normal
mood and affect, no tenderness, full range ofmotioninjoints and spine, and no atrophy. Tr. 23, 361,
8 - OPINION AND ORDER
366. Plaintiff then complained of arm pain and her physician suspected muscle spasms. Tr. 365.
The ALJ also detailed that in August 2013, Plaintiff complained of weakness inher hands and arm
pain, but on examination, Plaintiff demonstrated full muscle strength in her hands, biceps, and
shoulders. Tr. 365, 354-55. As the ALJ conectly found, Plaintiffs October 2013 examination
revealed normal findings; Plaintiff denied any increased psoriatic artluitis symptoms, no flares, and
reported no headaches and on examination she displayed no weakness, no tenderness, normal
coordination, full range of motion, with a n01mal gait and no atrophy. Tr. 365-66.
The ALJ's findings are wholly suppo1ied by substantial evidence. Based on the largely
benign examination findings, the ALJ reasonably could infer that the severity of Plaintiffs subjective
limitations are not suppo1ied by the objective medical evidence and appropriately discounted her
credibility on this basis. Carmickle, 533 F.3d at 1169; Imel v. Comm 'r Soc. Sec. Admin., Case No.
6:16-cv-00560-MA, 2017 WL 3238230, *5 (D. Or. July 31, 2017) (upholding ALJ's adverse
credibility determination where claimant's limitations not fully supported by medical record).
Plaintiff contends that the ALJ erred in relying on the lack of objective evidence to discredit
her because her fibromyalgia symptoms are entirely subjective, citing Belanger v. Berryhill, 685
F.App'x 596, 598 (9th Cir. 2017), and Rollins v. J\!fassanari, 261 F.3d 853, 855 (9th Cir. 2001) ..
In Belanger and Rollins the Ninth Circuit has recognized that fibromyalgia cannot be diagnosed
based on objective tests, but instead is diagnosed through a claimant's subjective reports of pain.
Belanger, 685 F.App'x at 598 (holding ALJ erred in discounting treating physician's opinion
because it relied on claimant's subjective complaints); Rollins, 261 F.3d at 855 (noting that
fibromyalgia is diagnosed through a claimant's self-repmis). Plaintiffs argument misses the mark.
9 - OPINION AND ORDER
Here, unlike Rollins and Belanger, the ALJ did not discredit Plaintiff because there was lack
of objective evidence to support her fibromyalgia diagnosis. Indeed, the ALJ found Plaintiffs
fibromyalgia a severe impairment at Step Two. Tr. 20. Instead, the ALJ found the medical evidence
did not verify the degree of physical limitations she alleges resulting from all of her conditions.
Indeed, Plaintiff did not identify fibromyalgia as a primary source of her limitations in either her
disability applications or her hearing testimony. Tr. 64, 82, 221. In the decision, the ALJ discussed
at length Plaintiffs medical records that undermine the severity of her complaints, including multiple
visits with her treating rheumatologist expressing essentially nmmal findings. The ALJ' s findings
are wholly suppmied by substantial evidence, are a reasonable interpretation of the evidence, and
will not be disturbed. }Jolina, 674 F.3d at 1111.
Second, the ALJ discussed that Plaintiff occasionally gave poor effort during her
examinations, which undermined her credibility. The failure to give full or consistent effort during
examinations is a relevant credibility consideration. Thomas v. Barnhart, 278 F.3d 947, 959 (9th
Cir. 2002) (ALJ appropriately considered claimant's self-limiting behaviors in adverse credibility
determination); Chaud1y v. Astrue, 688 F.3d 661, 671-72 (9th Cir. 2012) (ALJ properly considered
claimant's failure to give adequate effort during testing to discount credibility). As the ALJ
discussed, Plaintiff gave poor effo1i on examination with her primaiy care physician Debra Hmiley,
M.D., making it difficult to evaluate for physical findings. Tr. 23. Dr. Hartley's July 24, 2014
treatment notes show that Plaintiff complained of back pain radiating down her leg and up her back.
Tr. 428. Plaintiff also complained of chest pain for six months and shoulder and mm pain for six
weeks. Dr. Haiiley's notes show that on examination, Plaintiff had a normal range of motion in her
neck, and exhibited tenderness over the entire exam of her shoulder, hip and legs. Tr. 429. As the
10- OPINION AND ORDER
ALJ indicated, Dr. Hatiley rep01ied that Plaintiffs shoulder exain was not diagnostic as she had
inadequate effo1i. Tr. 429. Dr. Ha1iley's September 29, 2014 treatment note is similar. In
September 2014, Plaintiff complained to Dr. Haiiley of all-over body pain, and she repo1ied
tenderness to palpation along her cervical, thoracic, and lumbar spine, but Dr. Hartley could not
assess her strength in her hips and knees due to "poor effort." Tr. 421-22. Additionally, Dr. Hmiley
indicated that Plaintiff demonstrated subjective pain in the right knee, but the exam was negative for
radiculopathy. Tr. 22, 423.
Dr. Hmiley reported in her September 2014 treatment notes that it was "difficult to use for
full evaluation" because Plaintiff was in pain during the examination, and Dr. Hartley agreed to resubmit the request for a lumbar MRI. Tr. 423. As the ALJ discussed, Plaintiffs prior lumbar x-rays
showed only mild degenerative changes. And, at the hearing, Plaintiff admitted that no lumbar MRI
has been performed. Tr. 60. Reviewing the record as a whole, the ALJ's findings are supp01ied by
substantial evidence. The ALJ reasonably could infer that Plaintiff gave poor eff01i during her
examinations in 2014, and discount her credibility on this basis. See Cossette-Johnson v. Comm 'r
Soc. Sec. Admin., Case No. 3:12-cv-00383-MA, 2013WL1681980, *7 (D. Or. Apr. 16, 2013) (ALJ
did not err in discrediting claimant's subjective complaints for giving poor effo1i in some
examinations). Although Plaintiff now proposes a different interpretation of Dr. Hmiley' s treatment
notes, in the context of the record as a whole, the ALJ's interpretation is reasonable. 11,;/o/ina, 674
F.3d at 1111.
Lastly, the ALJ properly discounted Plaintiffs credibility because the degree of limitation
she alleged was inconsistent with the extensive activities she perfo1med and described.
Contradiction with a claimant's activities of daily living is a clear and convincing reason for rejecting
11 - OPINION AND ORDER
a claimant's testimony.
Tommasetti, 533 F.3d at 1039; see Thomas, 278 F.3d at 958-59
(inconsistency between claimant's testimony and claimant's conduct supported rejection of
claimant's credibility). "Even where those activities suggest some difficulty functioning, they may
be grounds for discrediting the claimant's testimony to the extent they contradict claims of a totally
disabling impahment." }Jolina, 674 F.3d at 1113.
For example, the ALJ discussed that Plaintiff contended in her application that she became
unable to work due to her alleged impairments as of December 30, 2008, yet Plaintiff attended
cosmetology school at least five hours a day from 2011 to 2012, while contemporaneously working
full-time as a bartender, albeit briefly. Tr. 24, 58. See also Bray v. Comm 'r Soc. Sec. Admin., 554
F.3d 1219, 1227 (9th Cir. 2009) (discounting claimant's credibility where she recently worked and
sought out other employment while pursuing disability). As the ALJ also noted, Plaintiff's allegation
that her conditions have deteriorated so substantially after 2012 that she is essentially bedridden is
inconsistent with her asseliions in an April 18, 2013 Function Report, in which she rep01ied that she
is independent in self-care, prepares meals, drives, goes shopping weekly, regularly attends church,
cares for her young daughter, and completes laund1y and other household chores. Tr. 24, 230-35.
The ALJ findings are fully supported by substantial evidence in the record as a whole. Based on the
wide variety of activities performed by Plaintiff and her ability to attend school and work, the ALJ
reasonably found that her activities are inconsistent with her allegations of total disability. See
Clough v. Comm 'r Soc. Sec. Admin., Case No. 6:15-cv-00140-MA, 2015 WL 8751857, *5 (D. Or.
Dec. 14, 2015) (ALJ appropriately discounted Plaintiffs alleged disabling social anxiety based on
her ability to attend college, raise children, volunteer at school, and perfo1m all necessaiy household
chores). The ALJ' s findings concerning Plaintiffs daily activities are supported by substantial
12 - OPINION AND ORDER
evidence in the record and provides additional support for the ALJ' s adverse credibility
determination. The court concludes that when the ALJ' s first, second, and third reasons are
combined, they readily provide clear and convincing support for the ALJ's adverse credibility
determination. 1'.Iolina, 674 F.3d at 1113 (finding claimant's daily activities and inconsistency with
medical evidence suppmted adverse credibility determination).
In short, the ALJ thoroughly discussed the medical record and provided specific details about
the lack of objective support for Plaintiffs alleged physical limitations, her failure to provide full
effo11, and the inconsistency between Plaintiffs reported activities and her alleged limitations. The
ALJ has provided specific, clear and convincing reasons to support the adverse credibility
dete1mination that are based on reasonable inferences drawn from the record as whole. 1\Iolina, 674
F.3d at 1111. The ALJ's findings are sufficiently specific to permit the Comt to conclude that
Plaintiffs credibility was not arbitrarily discredited. Brown-Hunter, 806 F.3d at 493. The ALJ did
The ALJ Did Not Err in Evaluating Dr. McCord's Opinions
In general, the opinion of a treating physician is given more weight than the opinion of an
examining physician, and the opinion of an examining physician is afforded more weight than the
opinion ofa nonexamining physician. Ghanim, 763 F.3d at 1160; Garrison, 759 F.3d at 1012; Orn
v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). "Ifa treating physician's opinion is well-suppo1ted by
medically acceptable clinical and laboratmy diagnostic techniques and is not inconsistent with the
other substantial evidence in [the] case record, [it will be given] controlling weight." Orn, 495 F.3d
at 631 (intemal quotations omitted)(alterations in original); 20 C.F.R. §§ 404.1527(c); 416.927( c).
To reject the uncontradicted opinion of a treating physician, the ALJ must provide "clear and
13 - OPINION AND ORDER
convincing reasons that are supported by substantial evidence." Bayliss v. Barnhart, 427 F .3d 1211,
1216 (9th Cir. 2005).
If the treating physician's opinion is contradicted, the ALJ must consider how much weight
it is entitled to considering the factors in 20 C.F.R. §§ 404.1527(c)(2-6); 416.927(c)(2-6). The
factors include the length of the treatment relationship, the frequency of examination, the nature and
supp01iability of the opinion, and its consistency with other evidence in the record as a whole. 20
C.F.R. §§ 404.1527(c)(2-6), 416.927(d)(2-6); Ghanim, 763 F.3d at 1161. If a treating or examining
doctor's opinion is contradicted by another doctor's opinion, it may be rejected by specific and
legitimate reasons. Trevizo v. Benyhill, 862 F.3d 987, 997 (9th Cir. 2017). However, "[t]he ALJ
need not accept the opinion of any physician, including a treating physician, if that opinion is brief,
conclusory, and inadequately supported by clinical findings." Thomas, 278 F.3d at 957.
Plaintiff argues that the ALJ failed to provide adequate reasons for discounting the opinions
ofW. Clay McCord, M.D., Plaintiffs treating rheumatologist. Dr. McCord began treating Plaintiff
in February 2011, when Plaintiff self-referred to his clinic and rep01ied that she had been diagnosed
with rheumatoid mihritis some 20 years prior. Tr. 390, 394.
Dr. McCord treated Plaintiff
approximately once every two to four months from 2011through2014.
Dr. McCord provided multiple opinions. First, in a November 7, 2013 letter, Dr. McCord
opined that Plaintiff is "permanently disabled despite medications because she cannot sit in excess
of90 minutes without position change, cannot stand beyond 15 minutes at a time, and fine dexterity
has some impairment." Dr. McCord further stated that Plaintiffs condition was unlikely to improve.
Tr. 353. Second, Dr. McCord completed a Medical Source Statement dated February 14, 2014, in
which he provided diagnoses of psoriatic atihritis, fibromyalgia, and lumbar degenerative joint
14- OPINION AND ORDER
disease. Tr. 402. Dr. McCord opined that Plaintiff can walk for two blocks, can sit for a total of four
hours in a day, stand and walk for less than two hours a day, and needs to be able to change positions
at will. Tr. 403. Dr. McCord stated that Plaintiff requires four unscheduled breaks each day, can
occasionally lift 10 pounds or less, should never climb ladders, can rarely bend, stoop, crouch or
squat, and has no limitations with reaching, handling, or fingering. Tr. 404. Dr. McCord fmiher
provided that Plaintiff would be off-task 25 percent or more of the day, would be absent four or more
days each month, and that these limitations have been present since 2012. Tr. 403.
Third, Dr. McCord provided a November 4, 2014 letter in which he opined that Plaintiff is
under his care for "generalized osteoarthritis of the spine, chronic pain syndrome, and fibromyalgia."
Tr. 469. Dr. McCord fmiher stated that Plaintiffs functioning had deteriorated and that she
"remains pe11nanently disabled." Tr. 469. Fourth, Dr. McCord completed a December 22, 2014
Physical Medical Source Statement, in which he provided that Plaintiffs diagnoses are psoriatic
arthritis, fibromyalgia, and depression. Tr. 406. Dr. McCord noted that Plaintiff could walk one
block, sit for four hours in a day, and stand and walk for less than two hours, and needs to be able
to change positions at will. Tr. 407. Dr. McCord fu11her indicated that Plaintiff needs three to four
unscheduled breaks, can occasionally lift 10 pounds or less, can never climb ladders, can rarely climb
stairs, crouch or squat, and has no significant limitations with reaching, handling, or fingering. Tr.
408. Dr. McCord provided that Plaintiff would be off-task 15 percent of the time, and that her
symptoms and limitations had been present since 2008. Tr. 409.
Dr. McCord's opinions are contradicted by those ofnonexamining agency physicians Neal
E. Bemer, M.D., and Mary Ann Westfall, M.D., who opined that Plaintiff was capable of perfo1ming
15 - OPINION AND ORDER
a reduced range of light work. Tr. 88-89, 113-14. Therefore, the ALJ was required to provide
specific and legitimate reasons for discounting Dr. McCord's opinions.
The ALJ' s reasoning readily meets this standard. In the decision, the ALJ gave Dr. McCord' s
opinions "little weight" because: (1) his opinions are inconsistent with his own treatment notes; (2)
his medical source statements provided no nanative explanations; and (3) his opinions relied on
Plaintiffs subjective complaints. Tr. 24.
First, as the ALJ conectly found, Dr. McCord's various opinions are inconsistent with the
generally benign findings detailed in his treatment notes. "A conflict between treatment notes and
a treating provider's opinions may constitute an adequate reason to discredit the opinions of a
treating physician[.]" Ghanim, 763 F.3d at 1161. To be sure, as the ALJ indicated, the bulk of Dr.
McCord's treatment notes indicate that Plaintiffs examinations were within normal limits. Tr. 2324, 356, 361, 365-66, 375, 379, 381, 383, 385, 387, 389, 389. Indeed, despite the extreme sitting,
walking, and standing limitations assessed by Dr. McCord, the ALJ points to treatment notes
showing full range of motion and normal strength.
Tr. 361, 365, 378-87. Dr. McCord's
examinations repeatedly revealed n01mal strength, tone, gait, full range of motion, without atrophy,
weakness or tendemess. See, e.g., Tr. 374, 380, 382, 384, 386, 388, 390.
The ALJ' s findings are wholly supp01ied by substantial evidence in the record. Thus, the
ALJ has provided a specific and legitimate reason for discounting Dr. McCord's opinions - the
incongruity between his opinions and his treatment notes. See lvfolina, 674 F.3d at 1111-12
(recognizing that a conflict with treatment notes is a ge1mane reason to reject a treating physician's
assistant's opinion); Valentine, 574 F.3d at 692-93 (holding that a conflict with treatment notes is
a specific and legitimate reason to reject treating physician's opinion); Bayliss, 427 F.3d at 1216
16 - OPINION AND ORDER
(contradiction between physicians opinion and treatment notes a clear and convincing reason to
discount treating physician); Batson, 359 F.3d at 1196 (ALJ may discredit treating physicians'
opinions that are unsupported by objective medical findings or the record as a whole).
Second, as the ALJ appropriately found, Dr. McCord provided little narrative explanation
for his extreme limitations. iVfolina, 674 F.3d at 1111-12 (ALJ properly rejected physician
assistant's opinion where it consisted of a check-the-box f01m and failed to provide supporting
reasoning); Crane v. Shala/a, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ permissibly rejected
psychological evaluations "because they were check-off reports that did not contain any explanation
of the bases of their conclusions"); De Guzman v. Astrue, 343 F. App'x 201, 209 (9th Cir. 2009)
(ALJ was "free to reject" doctor's check-off report that did not explain basis for conclusions). To
be sure, the check-the-box medical source statements provide ve1y little explanation for the
limitations ascribed. For example, Dr. McCord offered "multiple trigger points" as a clinical finding
supp01iing his opinion in the December 2014 Medical Source Statement. Tr. 406. However, Dr.
McCord' s treatments notes disclose relatively few complaints of myalgias, or tenderness to
palpitation over the entire three years of Plaintiffs treatment. Tr. 361, 365, 370. On the contrmy,
as discussed in detail above, Dr. McCord's treatment notes show most examinations were within
normal limits, without weakness or tenderness. And, Dr. McCord provides no narrative explanation
as to why he opined that Plaintiff would be off task 25 percent in a typical workday due to
interferences with attention and concentration, which is contrmy to Plaintiffs testimony that she has
no such difficulties. Compare Tr. 405 with Tr. 67, 235. Therefore, when viewing the medical source
statements in conjunction with Dr. McCord' s relatively benign treatment notes, the ALJ reasonably
discounted his check-the-box forms because they lacked a narrative explanation. TheALJ's findings
17 - OPINION AND ORDER
are wholly supported by substantial evidence, and when the first and second reason are combined,
would provide clear and convincing support, let alone specific and legitimate reasons, for
discounting Dr. McCord's opinions.
Third, the ALJ discounted Dr. McCord's opinions because they appeared to be based on
Plaintiffs appropriately discounted subjective complaints. Plaintiff appears to contend that the ALJ
enoneously demanded objective evidence to support her allegations ofpain. Plaintiff complains that
her fibromyalgia and psoriatic arthritis do not lend themselves to objective findings, therefore, Dr.
McCord was required to rely upon her subjective complaints of her pain, citing Belanger, 685
F.App'x at 598, and Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). In Belanger and
Benecke the Ninth Circuit recognized that fibromyalgia cannot be diagnosed based on objective tests,
but instead is diagnosed through a claimant's subjective repo1ts of pain. Belanger, 685 F.App'x at
598 (holding ALJ erred in discounting treating physician's opinion because it relied on claimant's
subjective complaints); Benecke, 379 F.3d at 594 (holding ALJ erred in discounting physician's
opinion of claimant's fibromyalgia because it was not based on objective testing). However, unlike
Belanger and Benecke, the ALJ in this case discounted Dr. McCord's opinion not because it lacked
objective findings to support a diagnosis of fibromyalgia, but because Dr. McCord's assessed
limitations were not supported by his own treatment notes and because he failed to provide a
narrative assessment explaining the discrepancy. These are proper reasons to discount Dr. McCord' s
opinion. Delaplain v. Comm 'r Soc. Sec. Admin., Case No. 2:15-cv-02439-HZ, 2017 WL 1234133,
*5 (D. Or. Mar. 17, 2017) (holding ALJ appropriately discounted physician's opinion because
treatment notes about claimant's fibromyalgia were inconsistent with limitations assessed).
18 - OPINION AND ORDER
As the ALJ discussed and detailed above, Dr. McCord's treatment notes persistently show
that Plaintiffhas a no1mal gait, no atrophy, and no musculoskeletal issues. Therefore, the ALJ could
reasonably infer the limitations set fo1ih in his opinions were based on Plaintiff's appropriately
discounted subjective complaints. The ALJ's findings are supported by substantial evidence and
provides another specific and legitimate basis for discounting Dr. McCord's opinions. Thomas, 278
F.3d at 957 (ALJ properly rejected treating physician's opinion where ALJ made findings setting out
a detailed summary of facts, conflicting evidence, and stating interpretation of that evidence, and
making findings); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding ALJ properly
discounted treating physician's opinion whose conclusions were based largely on claimant's
subjective complaints that lacked credibility).
Finally, the ALJ indicated that Dr. McCord failed to explain a diagnosis of"drug seeking."
Tr. 25. Drug seeking behavior may be an appropriate basis for discounting a claimant's credibility
or doctor's opinion. Young-Fitch v. Colvin, Case No. 1:12-cv-00740-JE, 2013 WL 5161205, *14
(D. Or. Sept. 11, 2013) (upholding ALJ' s rejection of physician's opinion because it did not take into
consideration claimant's drug seeking behavior); see also Coffman v. Astrue, 469 F.App'x 609, 611
(9th Cir. 2012) (upholding ALJ's rejection of physician's opinion because it failed to address drug
seeking behavior). As the ALJ correctly indicated, Plaintiff's medical records carry a diagnosis of
drug seeking from February 2011 through November 2014, and Dr. McCord failed to discuss that
diagnosis. Tr. 357. Plaintiff acknowledges that drug seeking appears in her records, yet contends
that Dr. McCord clearly believed that Plaintiff's limitations were cause by her impairments. Pl.'s
Br. at 8, ECF No. 14. In the ALJ's decision, it is unclear whether the ALJ discounted Dr. McCord's
opinion on this basis. The comi need not resolve whether the ALJ actually relied upon this factor
19 - OPINION AND ORDER
to discount Dr. McCord's opinion. Even assuming arguendo that the ALJ did so enoneously, the
enor is harmless. The ALJ has identified other reasons backed by substantial evidence that provide
at least specific and legitimate reasons for discounting Dr. McCord's opinions. Because any error
is inconsequential to the ultimate nondisability determination, it is harmless. lvfolina, 674 F.3d at
The ALJ Provided Germane Reasons for Discounting the Lay Testimony
Lay witness testimony as to a claimant's symptoms or how an impairment affects his ability
to work is competent evidence, which the ALJ must take into account. !vfolina, 674 F.3d at 1114;
Nguyen v. Chafer, 100 F.3d 1462, 1467 (9th Cir. 1996). The ALJ need not discuss every witness's
testimony, and "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." lvfolina,
674 F.3d at 1114. Inconsistency with other evidence in the record is a ge1mane reason for rejecting
the testimony of a lay witness. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). Inconsistency with
the objective medical evidence is a germane reason for rejecting lay witness testimony. Bayliss, 427
F.3d at 1218.
Plaintiff argues that the ALJ failed to provide germane reasons for discounting the lay
testimony of Plaintiffs friend, Mary Johnson. The Commissioner responds that the limitations
described by Ms. Johnson panot Plaintiffs subjective complaints, and that ALJ provided germane
reasons for giving Ms. Johnson's testimony "little weight."
The Comt agrees with the
In the ALJ's decision, the ALJ discussed the two function reports completed by Mmy
Johnson. For example, the ALJ discussed that in a June 2013 Function Repo1t, Ms. Johnson
20 - OPINION AND ORDER
described that Plaintiff is unable to lift more than three pounds, can stand for 10 to 15 minutes, and
tires easily. Tr. 25, 240. As the ALJ noted, Ms. Johnson repmied that Plaintiff needs no assistance
with self-care, could care for her daughter, prepares meals, and performs household chores. Tr. 25,
241-42. As the ALJ detailed, in November 2014, Ms. Johnson discussed that Plaintiffs symptoms
had worsened, and that Plaintiff spends most of her time in bed. Tr. 25, 271. Additionally, Ms.
Johnson reported that Plaintiff needs assistance with bathing, and making meals, cannot stand or sit,
stand or walk for more than five minutes. Tr. 276. However, as the ALJ noted, Ms. Johnson also
indicated that Plaintiff is capable ofpreparing meals, some light housework and laundry, drives, goes
shopping all day, and attends church when feeling up to it. Tr. 25, 275. In the decision, the ALJ
gave Ms. Johnson's lay testimony "little weight" for three reasons: (1) it relied on Plaintiffs
previously discounted subjective statements; (2) is inconsistent with the objective medical evidence;
and (3) is inconsistent with Plaintiffs reported activities. Tr. 25.
Ms. Johnson's statements do not differ significantly from Plaintiffs and fail to describe
limitations beyond those rejected by the ALJ with well-supported, clear and convincing reasons as
discussed at length above. For example, Ms. Johnson, like Plaintiff, provided that since 2014,
Plaintiff is in constant pain, spends most of her time in bed, and being in one position for longer than
five minutes causes pain. Tr. 65-66, 271-276. In light of the similarity between Ms. Johnson's
statements and Plaintiffs own subjective complaints, and because of the Court's conclusion that the
ALJ provided clear and convincing reasons for providing limited weight to Plaintiffs subjective
complaints, "it follows that the ALJ also gave germane reasons" for rejecting Ms. Johnson's
testimony. Valentine, 574 F.3d at 694 (where ALJ provides clear and convincing reasons for
rejecting a claimant's testimony and the lay testimony is similar, the ALJ has provided germane
21 - OPINION AND ORDER
reasons); Williams v. Astrue, 493 F. App'x 866, 869 (9th Cir. 2012) (same); see also Lewis, 236 F.3d
at 511 (inconsistency with medical evidence is ge1mane reason for rejecting lay testimony).
Consequently, the ALJ did not err in discounting the lay testimony.
For the reasons set fo1ih above, the Commissioner's final decision denying benefits to
Plaintiff is AFFIRMED.
IT IS SO ORDERED.
DATED this _f__ day of SEPTEMBER, 2017.
Malcolm F. Marsh
United States District Judge
22 - OPINION AND ORDER
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