Lamarche v. Commissioner Social Security Administration
Filing
16
OPINION & ORDER. For these reasons, the Commissioner's decision is affirmed. IT IS SO ORDERED. Signed on 5/21/2019 by Judge Marco A. Hernandez. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DUSTIN L.,1
No. 1:18-cv-00546-HZ
Plaintiff,
OPINION & ORDER
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
Lisa R. J. Porter
JP Law PC
5200 SW Meadows Road, Suite 150
Lake Oswego, Oregon 97035
Attorneys for Plaintiff
Billy Williams
United States Attorney
Renata Gowie
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
Ryan Ta Lu
Special Assistant United States Attorney
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104
Attorneys for Defendant
1
In the interest of privacy, this Opinion and Order uses only Plaintiff’s first name and the initial
of his last name.
1 – OPINION & ORDER
HERNÁNDEZ, District Judge:
Plaintiff Dustin L. brings this action for judicial review of the Commissioner’s final
decision denying his application for Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42
U.S.C. § 1382(c)(3)). The issues before the Court are whether the Administrative Law Judge
(“ALJ”) erred by: (1) finding at step two that Plaintiff’s mental impairments were not severe;
(2) discrediting Plaintiff’s testimony; (3) discrediting the opinion of Kimberly H. Schlievert,
Ph.D., an examining psychologist; and (4) discrediting the lay-witness testimony of Craig Fleck,
Ronalee McCarthy, and Wendy Hoag. Because of the above alleged errors, Plaintiff also
contends the ALJ’s assessment of Plaintiff’s residual functional capacity (“RFC”) was also
erroneous. I affirm the Commissioner’s decision.
BACKGROUND
Plaintiff applied for DIB on April 7, 2016, alleging a disability onset date of March 5,
2015. Tr. 174.2 Plaintiff’s application was denied initially and upon reconsideration. Plaintiff’s
administrative hearing was held on August 22, 2017, before ALJ Steven A. De Monbreum. Tr.
44. The ALJ denied Plaintiff’s claim in a written decision issued on October 27, 2017. Tr. 21–39.
The Appeals Council denied review, rendering the ALJ’s decision final. Tr. 1–3.
SEQUENTIAL DISABILITY ANALYSIS
A claimant is disabled if he 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). Disability claims are evaluated according to a five-step procedure. Valentine v.
2
“Tr.” refers to the administrative record transcript, filed here as ECF 12.
2 – OPINION & ORDER
Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate
burden of proving disability. Id.
At 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). At 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). If not, the claimant is not disabled.
At step three, the Commissioner determines whether claimant’s impairments, singly or in
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). If so, the claimant is conclusively presumed disabled; if not, the
Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At 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). If the claimant can, the claimant is not disabled. If the claimant cannot
perform past relevant work, the burden shifts to the Commissioner. At 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). If the Commissioner meets its 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.
THE ALJ’S DECISION
At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since
March 5, 2015, the alleged onset date. Tr. 24.
3 – OPINION & ORDER
At step two, the ALJ determined Plaintiff had the following severe impairments: obesity,
“multiple foot surgeries,” peripheral neuropathy, plantar fasciitis, osteoarthritis, and degenerative
disc disease of the cervical spine with left upper extremity radiculopathy. Tr. 24–25.
At step three, the ALJ found Plaintiff’s impairments or combination of impairments did
not meet or equal the severity of one of the listed impairments. Tr. 25–26.
Before step four, the ALJ determined Plaintiff had the RFC to perform work at the light
exertional level, except that:
[Plaintiff] can stand or walk only four hours total in an eight hour workday; he
can sit for six or more hours total a day; he can occasionally climb ropes or
ladders, and can frequently balance, kneel, crouch, crawl, or stoop, bend, and
climb ramps or stairs; he can have no more than occasional exposure to workplace
hazards such a dangerous machinery or unprotected heights.
Tr. 26–37.
At step four, the ALJ determined Plaintiff is capable of performing his past relevant work
as a “grain weigher.” Tr. 37. Accordingly, the ALJ found Plaintiff not disabled on that basis.
In the alternative, at step five the ALJ concluded that other jobs exist in the national
economy that Plaintiff can perform including storage facility clerk, garment sorter, and laundry
folder. Tr. 38. Even if Plaintiff was additionally limited to occasional overhead reaching with the
left upper extremity, the ALJ also found Plaintiff could perform other jobs that exist in the
national economy including motel desk clerk, call out operator, election clerk, and telemarketer.
Tr. 38–39. Accordingly, the ALJ also concluded Plaintiff was not disabled on these bases. Tr. 39.
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
4 – OPINION & ORDER
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). Courts consider 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 (internal
quotation marks 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 contends the ALJ’s decision was not supported by substantial evidence and
contains legal errors. In particular, Plaintiff argues the ALJ made the following errors. First, the
ALJ improperly found at step two that Plaintiff’s mental conditions did not qualify as “severe”
impairments. Second, the ALJ erroneously discredited Plaintiff’s testimony. Third, the ALJ
improperly discredited the opinion of Dr. Schlievert, a Veterans Administration (“VA”)
examining psychologist. Fourth, the ALJ erroneously discredited the lay testimony of Craig
Fleck, Ronalee McCarthy, and Wendy Hoag. As a result of these errors, Plaintiff contends the
ALJ’s assessment of Plaintiff’s RFC was not supported by substantial evidence and, therefore,
the ALJ erroneously determined that Plaintiff was not disabled at step four and, alternatively, at
step five.
I.
Step Two
As noted, Plaintiff contends the ALJ erred when he declined to find Plaintiff’s mental
impairments to be “severe impairments” at step two of the sequential analysis. Step two of the
5 – OPINION & ORDER
five-step disability inquiry is a de minimis screening used to eliminate groundless claims.
Yuckert, 482 U.S. at 153–154 (1987); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); see
also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (holding that ALJ should have
continued the sequential disability analysis beyond step two because there was not substantial
evidence showing that the plaintiff's claim was groundless). An impairment or combination of
impairments can be found to be “not severe” only if evidence establishes a slight abnormality
that has “no more than a minimal effect on an individual’s ability to work.” SSR 85–28, 1985
WL 56856, at *2. If the ALJ determines that an impairment is a severe medically determinable
one, the analysis proceeds to step three. Keyser v. Commissioner Social Sec. Admin., 648 F.3d
721, 725 (9th Cir. 2011). If the ALJ erroneously finds a condition is not severe at step two,
however, that error is harmless if the ALJ nonetheless proceeds in the disability analysis and
considers the symptoms and limitations arising from the erroneously omitted condition in the
formulation of the claimant’s RFC. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
In the portion of his decision specific to step two, the ALJ found that Plaintiff’s “mental
impairments result in few if any deficits,” and made only summary findings pursuant to the
“paragraph B” criteria in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 24. The ALJ, however,
extensively addressed the medical evidence regarding Plaintiff’s mental-health conditions in his
discussion of the evidence as it related to the assessment of Plaintiff’s RFC. Tr. 29–30, 33–35. In
particular, the ALJ found Plaintiff denied having either depression or anxiety to Tracy L.
Chisholm, Psy.D., Plaintiff’s treating psychologist, and told Michael R. Villanueva, Psy.D., an
examining psychologist, that mental-health conditions do not interfere with his ability to perform
daily or work activities. Tr. 35. The ALJ also noted that a March 16, 2017, depression screening
6 – OPINION & ORDER
was negative. Tr. 35. Accordingly, the ALJ found Plaintiff did not have any severe mental-health
impairments.3 Tr. 35.
The Court concludes these findings are supported by substantial evidence. The ALJ was
correct that Plaintiff “did not endorse current difficulties with depressed or anxious mood” to Dr.
Chisholm on February 20, 2015, which was shortly before the alleged onset date. Tr. 311. On
May 22, 2015, Dr. Chisholm found Plaintiff has “no mental, emotional, cognitive, or physical
barriers preventing him from being fully employable in an alternative occupation that is not as
physically demanding.” Tr. 296. Similarly, on June 7, 2016, Plaintiff denied experiencing
“severe” symptoms of depression and told Dr. Villanueva that “[d]epression did not interfere . . .
with his performance of work tasks” or activities of daily living. Tr. 664. Finally, the ALJ
correctly noted Plaintiff had a negative depression screen on March 16, 2017. Tr. 871. The most
significant evidence in the record that indicated Plaintiff had severe mental-health impairments
was Dr. Schlievert’s opinion, but, as discussed fully below, the ALJ provided legally sufficient
reasons for discrediting that opinion.
Accordingly, the Court concludes the record supports the ALJ’s conclusion that
Plaintiff’s mental-health impairments were not severe, and, therefore, the ALJ did not err at step
two.
3
To the extent that Plaintiff argues the ALJ erred by not discussing this evidence in the section
of his decision specific to step two, the Court rejects Plaintiff’s argument. Although the ALJ
placed his discussion of this evidence in the section of the decision related to the assessment of
Plaintiff’s RFC, the ALJ concluded at the end of that discussion that “no ‘severe’ mental
impairments are present.” Tr. 35. The ALJ made clear, therefore, that his discussion of the
mental health-related evidence also applied to his step two findings. The Court, therefore,
considers that discussion when assessing whether the ALJ’s step-two findings were supported by
substantial evidence.
7 – OPINION & ORDER
II.
Plaintiff’s Testimony
Plaintiff contends the ALJ improperly rejected his testimony regarding the severity and
extent of his limitations. The ALJ is responsible for determining credibility. Vasquez, 572 F.3d at
591. Once a claimant shows an underlying impairment and a causal relationship between the
impairment and some level of symptoms, clear and convincing reasons are needed to reject a
claimant’s testimony if there is no evidence of malingering. Carmickle v. Comm. Soc. Sec.
Admin., 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is
malingering, “where the record includes objective medical evidence establishing that the
claimant suffers from an impairment that could reasonably produce the symptoms of which he
complains, an adverse credibility finding must be based on ‘clear and convincing reasons’”); see
also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (holding that if the claimant has
presented such evidence, and there is no evidence of malingering, then the ALJ must give
“specific, clear and convincing reasons in order to reject the claimant’s testimony about the
severity of the symptoms”) (internal quotation marks omitted).
When determining the credibility of a plaintiff’s complaints of pain or other limitations,
the ALJ may properly consider several factors, including the plaintiff’s daily activities,
inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and
relevant character evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may
also consider the ability to perform household chores, the lack of any side effects from
prescribed medications, and the unexplained absence of treatment for excessive pain. Id.
The ALJ may consider many factors in weighing a claimant’s credibility,
including (1) ordinary techniques of credibility evaluation, such as the claimant’s
reputation for lying, prior inconsistent statements concerning the symptoms, and
other testimony by the claimant that appears less than candid; (2) unexplained or
inadequately explained failure to seek treatment or to follow a prescribed course
of treatment; and (3) the claimant’s daily activities.
8 – OPINION & ORDER
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (internal quotation marks omitted).
As the Ninth Circuit further explained in Molina;
While a claimant need not vegetate in a dark room in order to be eligible for
benefits, the ALJ may discredit a claimant’s testimony when the claimant reports
participation in everyday activities indicating capacities that are transferable to a
work setting[.] Even where those activities suggest some difficulty functioning,
they may be grounds for discrediting the claimant’s testimony to the extent that
they contradict claims of a totally debilitating impairment.
674 F.3d at 1112–13 (internal citations and quotation marks omitted).
At the August 22, 2017, hearing, Plaintiff testified he was forced to leave his last job after
he “hit a steel rod on [his] elbow and had emergency surgery on [his] arm” because he “busted
his artery.” Tr. 50. As a result of that injury, Plaintiff testified his left arm “doesn’t function
good,” which caused him to be unable to work in an office at his previous employment. Tr. 50–
51. Plaintiff also indicated he could not perform modified office duty in his previous job because
he had difficulty paying attention and concentrating caused by his pain medication. Tr. 54–55.
Plaintiff testified he applied for unemployment benefits and looked for a job as a stocker in a
grocery store after he left his previous job in 2015. Tr. 51–52. Plaintiff, however, told the ALJ
that he later determined he was not able to return to work. Tr. 51–52.
Plaintiff also reported he has longstanding pain in his feet and knees that has worsened
over time. Tr. 56–57. Plaintiff told the ALJ that pain remained about the same at the time of the
hearing as it was when he left his last job. Tr. 56–57. Plaintiff testified his foot pain makes it
difficult to stand and walk, causes “throbbing pain” while sitting, and that he currently has to
elevate his feet five to six hours per day. Tr. 59. Plaintiff also told the ALJ that he gets only “two
to three hours” of sleep per night because of his pain. Tr. 60.
9 – OPINION & ORDER
When asked about his mental impairments, Plaintiff indicated he was “[j]ust frustrated
with the pain, and not sleeping, and trying to be a father and husband.” Tr. 62. Asked whether he
experiences episodes of depression, Plaintiff responded: “I try to get away from them. I mean,
but, I know I’m angrier, upset. When the pain is too much or whatever, I get short tempered.” Tr.
62.
In his April 30, 2016, Adult Function Report, Plaintiff wrote that in a typical day he
wakes up; makes coffee; and then sits down, puts his feet up, and watches television. Tr. 206.
Plaintiff indicated he “sometimes ride[s] to the store.” Tr. 206. Plaintiff reported his pain
prevents him from doing any house or yard work, and that he is unable to do any cleaning,
cooking, or laundry. Tr. 208. Plaintiff indicated he can ride in a car, but he does not drive. Tr.
208. Plaintiff also reported his wife does the shopping for their household. Tr. 208. Plaintiff
reported he does not participate in any social activities, and he does not go anywhere outside his
home on a regular basis. Tr. 209.
Plaintiff indicated in his Adult Function Report that his conditions affect his abilities to
lift, squat, bend, stand, walk, sit, climb stairs, remember, complete tasks, concentrate, and get
along with others. Tr. 210. Plaintiff reported he can only walk “maybe [one-half of] a block” and
that thereafter he cannot again walk until the next day. Tr. 210. Plaintiff indicated he can no
longer stand more than 10 minutes, and that he sleeps only one to four hours per day. Tr. 206.
The ALJ discredited Plaintiff’s testimony because (1) Plaintiff made inconsistent
statements regarding the elbow or hand injury that preceded the end of his employment;
(2) Plaintiff made inconsistent statements regarding his activities of daily living; (3) Plaintiff told
medical providers that he was capable of performing less physically demanding work; (4) the
medical evidence did not reflect that Plaintiff’s condition worsened between the time that he
10 – OPINION & ORDER
successfully worked full-time and when he asserted he became disabled; and (5) Plaintiff
demonstrated poor effort in a consultative examination with Michael Henderson, M.D., an
examining physician.
The ALJ correctly found Plaintiff made inconsistent statements regarding his elbow
injury. As noted, Plaintiff testified he left the job that immediately preceded his alleged onset of
disability because an on-the-job elbow injury “busted an artery” and required emergency
surgery. Tr. 50. As a result, Plaintiff testified that arm does not function well. Tr. 50–51. Plaintiff
also told Dr. Villanueva on June 7, 2016, that he “injured his elbow at work” when he hit it “so
hard that it disrupted the vascularization of the left upper extremity” and that “[h]e underwent
vascular surgery with grafting in order to save the arm.” Tr. 662. The medical record does not
reflect any such injury and there is not any record of an emergency elbow surgery or subsequent
severe elbow or arm limitations. On May 25, 2015, just two months after the alleged onset date,
Plaintiff told Dr. Chisholm that he was assigned to office work at his job after he was “shot in his
[left] hand with a pellet gun by a co-worker.” Tr. 295. Plaintiff did not mention any elbow injury
that required emergency surgery. Tr. 295. This report to Dr. Chisholm was supported by
contemporaneous medical records that indicated Plaintiff was seen in the emergency room to
remove a BB from his knuckle after an accident with a coworker in the parking lot at work. Tr.
838. Accordingly, the ALJ correctly found Plaintiff made inconsistent statements regarding his
elbow injury, and the medical record raises significant doubt that any such injury occurred.
Considering the significance of the limitations that Plaintiff ascribed to this injury at the hearing
and to the examining psychologist, this reason alone is a compelling justification to discredit the
entirety of Plaintiff’s testimony.
11 – OPINION & ORDER
The ALJ also reasonably found Plaintiff made inconsistent statements regarding the
extent of daily activities that he can perform. As noted, Plaintiff reported in his Adult Function
Report that he is not capable of performing any household tasks and that he does not socialize
outside his home. Tr. 209. The ALJ found these reports to be inconsistent with Plaintiff’s
statements to medical providers that he attended a “BIG party” on July 18, 2015, and that he was
“working on his bike” in March 2017. Tr. 487, 825 (capitalization in original). The ALJ’s
findings in this regard, therefore, are supported by the record and the ALJ reasonably concluded
such inconsistencies undermine Plaintiff’s credibility.
The record also supports the ALJ’s finding that Plaintiff’s statements regarding his ability
to pursue other employment undermined his testimony that he became disabled after the end of
his previous employment. In particular, the ALJ focused on Plaintiff’s statements to medical
providers that he believed he could perform sedentary work. For example, on May 22, 2015,
after the alleged onset date, Plaintiff reported to Dr. Chisholm that his reassignment to an office
job had “reliev[ed] pain in his feet” and “enlightened him as to how much more appropriate a
different occupational position would be for him, given his medical status.” Tr. 295. As a result,
Dr. Chisholm found Plaintiff has “no mental, emotional, cognitive, or physical barriers
preventing him from being fully employable in an alternative occupation that is not as physically
demanding.” Tr. 296. Similarly, in October 2013, Plaintiff indicated “[h]e would be willing to
work in a sedentary capacity, in a seated position.” Tr. 400. The ALJ reasonably concluded these
statements contradict Plaintiff’s allegation that he was completely disabled as of the alleged
onset date.
The ALJ also reasonably found little basis in the record to conclude Plaintiff’s
functionality diminished such that he was able to be employed full-time before the alleged onset
12 – OPINION & ORDER
date, but could no longer work afterward. The record as a whole is clear that Plaintiff’s foot pain
is the underlying cause of most of his impairments. As noted, however, those complaints are
longstanding and there is not a clear basis in the record to establish that Plaintiff’s condition
worsened to the point that his statements regarding being able to work in a less physically
demanding environment in 2013 and 2015 became untrue at any time relevant to Plaintiff’s
disability application.
Finally, the ALJ correctly observed that Dr. Henderson, the consultative examining
physician, found Plaintiff gave poor effort in his examination and made allegations regarding the
extent of his limitations that were not supported by objective findings. After examining Plaintiff,
Dr. Henderson noted “[f]ull effort was not given” and Plaintiff demonstrated “pain behaviors out
of proportion to the objective findings.” Tr. 659. Dr. Henderson went on to observe that his
“objective findings do not support the subjective history” and that Plaintiff’s “[p]erformance
during exam was inconsistent.” Tr. 659. The ALJ reasonably concluded Dr. Henderson’s
findings are additional evidence that Plaintiff’s testimony was unreliable.
The Court finds these reasons, taken together, amount to clear and convincing reasons
supported by substantial evidence to discredit Plaintiff’s testimony. Accordingly, on this record
the Court concludes the ALJ did not err when he discredited Plaintiff’s testimony because he
provided legally sufficient reasons for doing so.
III.
Dr. Schlievert’s Opinion
Plaintiff next contends the ALJ improperly discredited the opinion of Dr. Schlievert, an
examining psychologist who assessed Plaintiff in relation to his VA disability determination.
Social security law recognizes three types of physicians: (1) treating; (2) examining; and
(3) nonexamining. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Generally, more
13 – OPINION & ORDER
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. §§ 404.1527(c)(1)–(2), 416.927(c)(1)–(2). Moreover,
more weight is given to an examining physician than to a nonexamining physician. Garrison,
759 F.3d at 1012.
“[T]he ALJ may only reject a treating or examining physician’s uncontradicted medical
opinion based on ‘clear and convincing reasons.’” Carmickle, 533 F.3d at 1164 (quoting Lester
v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995)). “Where such an opinion is contradicted,
however, it may be rejected for ‘specific and legitimate reasons that are supported by substantial
evidence in the record.’” Carmickle, 533 F.3d at 1164 (quoting Lester, 81 F.3d at 830–31).
Dr. Schlievert examined Plaintiff on September 5, 2015. Tr. 452–58. Dr. Schlievert
observed Plaintiff to have “a depressed and anxious mood” and noted his “affect was flat and
dysphoric.” Tr. 454. Plaintiff reported to Dr. Schlievert that “sometimes when he is hurting
badly, he cannot calculate, has trouble with memory, concentration, and attention, and has
difficulty making decisions.” Tr. 453. Dr. Schlievert found Plaintiff’s “depression has worsened
since his last examination,” and “[h]is mental status has been severely affected by his service
connected condition.” Tr. 457. Dr. Schlievert concluded Plaintiff has “severe depression in
relation to his chronic pain,” and that Plaintiff does not function well as a result. Tr. 457.
The ALJ discredited Dr. Schlievert’s opinion because it was inconsistent with the
medical record and, in particular, Dr. Chisholm’s findings; Plaintiff exaggerated his reports to
Dr. Schlievert; and Dr. Schlievert’s opinion was inconsistent with Dr. Villanueva’s examination.
Tr. 33–34. Because Dr. Schlievert’s opinion is contradicted by Dr. Villanueva’s opinion and Dr.
Chisholm’s assessment, the ALJ was required to provide specific and legitimate reasons to
discredit Dr. Schlievert’s opinion. Carmickle, 533 F.3d at 1164.
14 – OPINION & ORDER
The ALJ reasonably found Dr. Chisholm’s findings and assessment to be more reliable
than Dr. Schlievert’s and the ALJ properly discredited Dr. Schlievert’s opinion on that basis.
Whereas Dr. Schlievert was an examining psychologist, Dr. Chisholm was a treating
psychologist and, therefore, was more familiar with Plaintiff than Dr. Schlievert.
Moreover, the ALJ reasonably found Plaintiff’s reports to Dr. Schlievert to be
inconsistent with other portions of the medical record. For example, Plaintiff told Dr. Chisholm
that he did not suffer from depression or anxiety, but Dr. Schlievert nonetheless found Plaintiff
to be depressed and anxious largely on the basis of Plaintiff’s reports of significant depression
and anxiety symptoms. Tr. 311, 454. Moreover, contrary to what Plaintiff told Dr. Schlievert,
Plaintiff reported to Dr. Villanueva that he was not experiencing severe depression and that it did
not interfere with his work or daily activities. Tr. 664. The ALJ, therefore, reasonably found
Plaintiff’s reports to Dr. Schlievert to be exaggerated and inconsistent with the record.
On this record, therefore, the Court concludes the ALJ did not err when he discredited Dr.
Schlievert’s opinion because he provided legally sufficient reasons for doing so.
IV.
Lay Testimony
Plaintiff next contends the ALJ erred when he discredited the lay testimony of Ronalee B.
McCarthy, Plaintiff’s friend; Craig Fleck, Plaintiff’s former employer; and Wendy Hoag, one of
Plaintiff’s family members.
In determining whether a claimant is disabled, an ALJ must consider lay witness
testimony concerning a claimant’s ability to work.” Stout v. Comm’r of Soc. Sec. Admin., 454
F.3d 1050, 1053 (9th Cir. 2006) (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)).
Lay-witness testimony cannot be disregarded without comment and the ALJ must give germane
reasons for discounting such testimony. Molina, 674 F.3d at 1114. Germane reasons must be
15 – OPINION & ORDER
specific. Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (citing Stout, 454 F.3d at 1053).
Germane reasons for discounting lay-witness testimony include: conflicts with medical evidence
and inconsistency with the plaintiff’s daily activities. Lewis v. Apfel, 236 F.3d 503, 511–12 (9th
Cir. 2001). Another germane reason to discredit lay testimony is that it is substantially similar to
the claimant’s validly discredited allegations. Valentine, 574 F.3d at 694.
A.
McCarthy’s Testimony
McCarthy submitted a Third Party Function Report dated August 21, 2016, in which she
testified Plaintiff cannot “stand on his feet very long” and “doesn’t really do much of anything”
because of pain. Tr. 236. McCarthy reported Plaintiff “doesn’t do social activities” and that he
cannot walk more than approximately 50 feet before needing to rest until the following day. Tr.
241. McCarthy also indicated Plaintiff lost his previous job “because of his feet.” Tr. 241.
The ALJ discredited McCarthy’s testimony on the basis that it “essentially duplicates
[Plaintiff’s] own allegations” and was inconsistent with Dr. Henderson’s examination findings.
Tr. 37. The ALJ correctly found McCarthy’s reported limitations were substantially similar to
Plaintiff’s allegations, which, as noted, the ALJ properly discredited. This is a germane reason to
discredit McCarthy’s testimony. Valentine, 574 F.3d at 694. Moreover, the ALJ reasonably
determined McCarthy’s descriptions of Plaintiff’s foot pain and walking and standing limitations
were inconsistent with Dr. Henderson’s findings that Plaintiff was not so limited. See Tr. 659–
60.
Accordingly, on this record the Court concludes the ALJ did not err when he discredited
McCarthy’s testimony because he provided legally sufficient reasons for doing so.
16 – OPINION & ORDER
B.
Fleck’s Testimony
Fleck submitted two letters to the VA on Plaintiff’s behalf. In his first letter, dated March
5, 2015, Fleck indicated “[b]ecause of [Plaintiff’s] injury we have not been able to work him at
full capacity.” Tr. 264. Fleck also reported Plaintiff was unable to operate machinery on the job
because of his pain medications, and that the was not able to perform many of the duties he was
hired to perform. Tr. 264.
In a September 8, 2015, letter, Fleck indicated he was unable to continue to employ
Plaintiff “due to his increasing problems with his injury along with the pain medications.” Tr.
263. Although Fleck indicated Plaintiff “was a good worker,” he also stated that if Plaintiff
continued to work “it was obvious that it was going to further his injury.” Tr. 263.
The ALJ discredited Fleck’s testimony because it was “marked by inconsistencies
between the reasons [Fleck] state[s] the claimant was laid off, and those [Plaintiff] relates or
emphasizes in his testimony.” Tr. 31. In particular, the ALJ found Fleck’s repeated references to
the effects of Plaintiff’s “injury” without specifying the nature of that injury and without
referencing Plaintiff’s difficulty ambulating or chronic foot pain rendered Fleck’s testimony
unhelpful to assessment of Plaintiff’s application.
The ALJ’s findings are supported by the record and provide a reasonable basis to
discredit Fleck’s testimony. Fleck’s repeated general references to Plaintiff’s “injury,” in
particular, render it difficult to assess his testimony. It is not clear whether Fleck merely referred
to Plaintiff’s on-the-job elbow or hand injury or whether Fleck intended to more broadly refer to
Plaintiff’s chronic foot pain and difficulty ambulating. This ambiguity in Fleck’s testimony is
particularly important in light of Plaintiff’s inconsistent reports regarding the conditions that
forced him to leave his previous job and the nature of the injury that Plaintiff suffered on the job.
17 – OPINION & ORDER
Accordingly, the Court concludes the ALJ provided legally sufficient reasons to discredit
Fleck’s testimony.
C.
Hoag’s Testimony
Hoag wrote a letter to the Social Security Administration in which she opined Plaintiff
has struggled with his foot problems since serving in the Navy. Tr. 277. Plaintiff’s foot
problems, Hoag stated, also led to other conditions, including depression. Tr. 277. Hoag
indicated Plaintiff’s condition worsened as a result of his “arm injury a few years ago.” Tr. 277.
Hoag reported Plaintiff is “always in pain and therefore can only sustain activity for short
periods.” Tr. 278.
The ALJ partially discredited Hoag’s testimony because the medical record reflected
Plaintiff’s depression was not symptomatic. The ALJ indicated, however, that Hoag’s general
testimony regarding Plaintiff’s pain was broadly consistent with the ALJ’s assessment of
Plaintiff’s RFC, which included physical limitations.
As discussed above, the ALJ reasonably found the medical record indicated that
Plaintiff’s depression was not symptomatic and did not interfere with his daily activities. This is
a valid basis to discredit that portion of Hoag’s testimony. The ALJ also reasonably found
Hoag’s testimony regarding Plaintiff’s pain to be undetailed, and, as such, the ALJ reasonably
interpreted that testimony as consistent with the ALJ’s assessment of Plaintiff’s RFC.
Accordingly, the Court concludes the ALJ did not err when he partially discredited
Hoag’s testimony because he provided legally sufficient reasons for doing so.
Because the Court concludes the ALJ did not err in his consideration of Plaintiff’s
mental-health conditions at step two, in his consideration of Plaintiff’s testimony, in his
assessment of Dr. Schlievert’s opinion, or in his consideration of the lay testimony, the Court
18 – OPINION & ORDER
concludes Plaintiff has not established that the ALJ erred in the formulation of Plaintiff’s RFC.
Accordingly, the ALJ also did not err when he found Plaintiff not disabled at step four or, in the
alternative, at step five.
CONCLUSION
For these reasons, the Commissioner’s decision is affirmed.
IT IS SO ORDERED.
DATED this _____ day of May, 2019.
______________________________
MARCO A. HERNÁNDEZ
United States District Judge
19 – OPINION & ORDER
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