Pierce v. Commissioner Social Security Administration

Filing 33

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter with prejudice. Signed on 02/07/2012 by Judge Anna J. Brown.See 26 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

JACK M. PIERCE,

3:10-CV-1399-BR

Plaintiff,
OPINION AND ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.

DAVID B. LOWRY
9900 S.W. Greenburg Road
Columbia Business Center, Suite 130
Portland, OR 97223
[phone]
Attorneys for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]

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OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
RICHARD RODRIGUEZ
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900 M/S 901
Seattle, WA 98104-7075
[phone]
Attorneys for Defendant

BROWN, Judge.
Plaintiff Jack M. Pierce seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which the ALJ denied Plaintiff's
applications for Supplemental Security Income (SSI) and
Disability Insurance Benefits (DIB) under Titles XVI and II of
the Social Security Act.

This Court has jurisdiction to review

the Commissioner's decision pursuant to 42 U.S.C. § 405(g).
Following a review of the record, the Court AFFIRMS the
decision of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
Plaintiff filed his protective application for SSI on
October 12, 2004.

Tr. 81-82.1

His applications were denied

initially and on reconsideration.

1

Tr. 81-82.

An Administrative

Citations to the official transcript of record filed by the
Commissioner on January 25, 2011, are referred to as "Tr."
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OPINION AND ORDER

Law Judge (ALJ) held a hearing on August 9, 2007.

Tr. 43.

the hearing, Plaintiff was represented by an attorney.

At

Tr. 43.

Plaintiff and a Vocational Expert (VE) testified at the hearing.
Tr. 45-80.
The ALJ issued an opinion on December 13, 2007, and found
Plaintiff was not disabled and, therefore, was not entitled to
benefits.

Tr. 24-36.

On August 28, 2008, the Appeals Council

remanded the portion of the decision denying Plaintiff’s
application for SSI.

Tr. 12-14.

The Appeals Council, however,

upheld the ALJ’s disability determination with respect to
Plaintiff’s application for DIB and that decision became the
final decision of the Commissioner on August 28, 2008.

Tr. 5-7,

12.
On September 18, 2008, Plaintiff filed a complaint in this
Court (No. 08-CV-1091-AA) challenging the Commissioner’s decision
as to his application for DIB.
On December 11, 2009, Chief Judge Ann L. Aiken issued an
Opinion and Order in which she reversed the Commissioner’s
decision to deny Plaintiff’s application for DIB and remanded for
further proceedings.

Tr. 566-88.

An ALJ held a second hearing on September 1, 2010.
At the hearing Plaintiff was represented by an attorney.
782.

Plaintiff and a VE testified at the hearing.

Tr. 782.
Tr.

Tr. 785-822.

The ALJ issued an opinion on September 9, 2010, and found

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OPINION AND ORDER

Plaintiff is not disabled and, therefore, is not entitled to
benefits.

Tr. 518-27.

That decision became the final decision

of the Commissioner.2
On November 10, 2010, Plaintiff filed his Complaint in this
Court seeking review of the Commissioner’s decision.

BACKGROUND
Plaintiff was fifty-four years old at the time of the second
hearing before the ALJ.
education.

Tr. 801.

driver and a laborer.

Tr. 82, 782.

Plaintiff reports “zero”

He has performed past work as a truck
Tr. 814-15.

Plaintiff alleges a

disability onset date of May 14, 2003.

Tr. 128-31.

Plaintiff has been diagnosed with type II diabetes, mild
diabetic neuropathy, coronary artery disease, traumatic
osteoarthritis, mild degenerative joint disease of the knees,
mild scoliosis, mild to moderate degenerative disc disease of the
middle to lower lumbar spine (prominent at L5-S1 level),
hypertension, hepatitis C, gastroesophageal reflux disease, and
mild esophagitis.

Tr. 367, 407, 466-67, 732-35, 770, 772.

2

The Court notes the individual who compiled and indexed
this Record did not list the Jurisdictional Documents. Tr. 607.
Although the Court could not locate in the record a document
reflecting the Appeals Council’s denial of Plaintiff’s request
for review of the September 9, 2010, decision by the ALJ,
Plaintiff asserts, and the Commissioner has stipulated, the ALJ’s
decision is the final decision of the Commissioner for purposes
of this Court’s review.
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OPINION AND ORDER

Plaintiff alleges he is disabled due to dizziness; shortness
of breath; pain in his ankles, knees, neck, chest, arms, and
lower back; limitations on his ability to sit, stand, and walk;
limitations on his ability to maintain concentration,
persistence, and pace; limitations on his ability to grasp, to
lift, and to carry; and limitations on his ability to hear and to
see.

Tr. 786-810.
Except when noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence.

After reviewing the medical

records, the Court adopts the ALJ’s summary of the medical
evidence.

See Tr. 520-26.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2005).

Ukolov v. Barnhart, 420 F.3d 1002, 1004

To meet this burden, a claimant must

demonstrate his inability "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).
developing the record.

The Commissioner bears the burden of

Reed v. Massanari, 270 F.3d 838, 841

(9th Cir. 2001).
The district court must affirm the Commissioner's decision

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OPINION AND ORDER

if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g).

See also Batson v. Comm'r of Soc. Sec.

Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

“Substantial

evidence means more than a mere scintilla, but less than a
preponderance, i.e., such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."

Robbins v.

Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)(internal
quotations omitted).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2001).

Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

The court must weigh all of the evidence whethis it

supports or detracts from the Commissioner's decision.
466 F.3d at 882.

Robbins,

The Commissioner's decision must be upheld even

if the evidence is susceptible to more than one rational
interpretation.
2005).

Webb v. Barnhart, 433 F.3d 683, 689 (9th Cir.

The court may not substitute its judgment for that of the

Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential

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OPINION AND ORDER

inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

See also 20 C.F.R. §§ 404.1520, 416.920.

Each step is

potentially dispositive.
In Step One, the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful
activity.

Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1052

(9th Cir. 2006).

See also 20 C.F.R. §§ 404.1520(a)(4)(I),

416.920(a)(4)(I).
In Step Two, the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe
impairment or combination of impairments.
1052.

Stout, 454 F.3d at

See also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii),

416.920(a)(4)(ii).
In Step Three, the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity.
454 F.3d at 1052.
416.920(a)(4)(iii).

Stout,

See also 20 C.F.R. §§ 404.1520(a)(4)(iii),
The criteria for the listed impairments,

known as Listings, are enumerated in 20 C.F.R. part 404, subpart
P, appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, he must
assess the claimant’s Residual Functional Capacity (RFC).

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The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.

See also Social Security Ruling

"A 'regular and continuing basis' means 8 hours a

day, for 5 days a week, or an equivalent schedule."
at *1.

20 C.F.R.

SSR 96-8p,

In other words, the Social Security Act does not require

complete incapacity to be disabled.
1273, 1284 n.7 (9th Cir. 1996).

Smolen v. Chater, 80 F.3d

The assessment of a claimant's

RFC is at the heart of Steps Four and Five of the sequential
analysis engaged in by the ALJ when determining whether a
claimant can still work despite severe medical impairments.

An

improper evaluation of the claimant's ability to perform specific
work-related functions "could make the difference between a
finding of 'disabled' and 'not disabled.'"

SSR 96-8p, at *4.

In Step Four, the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.

Stout, 454 F.3d at 1052.

See also

20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in
the national economy.

Stout, 454 F.3d at 1052.

C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

See also 20
Here the burden

shifts to the Commissioner to show a significant number of

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OPINION AND ORDER

jobs exist in the national economy that the claimant can do.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

The

Commissioner may satisfy this burden through the testimony of a
VE or by reference to the Medical-Vocational Guidelines set forth
in the regulations at 20 C.F.R. part 404, subpart P, appendix 2.
If the Commissioner meets this burden, the claimant is not
disabled.

20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

ALJ'S FINDINGS
At Step One, the ALJ found Plaintiff has not engaged in
substantial gainful activity since May 14, 2003, the alleged
onset date of Plaintiff’s disability.

Tr. 520.

At Step Two, the ALJ found Plaintiff has the severe
impairments of diabetes, degenerative joint disease of both
knees, coronary artery disease status post-myocardial infarction,
lumbar degenerative disc disease, and scoliosis.

Tr. 520.

At Step Three, the ALJ concluded Plaintiff’s impairments do
not singly or in combination meet or equal a Listed Impairment.
See 20 C.F.R. part 404, subpart P, appendix 1.

The ALJ found

Plaintiff had the RFC to
perform light work as defined in 20 C.F.R.
404.1567(b) and 416.967(b) except he cannot
climb ladders or work around unprotected
heights. He is limited to occasional
climbing of stairs and occasional crawling,
crouching, kneeling, balancing, and stooping.
He needs to change positions hourly.

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OPINION AND ORDER

Tr. 521.
At Step Four, the ALJ concluded Plaintiff is unable to
perform any of his past relevant work.

Tr. 525.

At Step Five, the ALJ concluded Plaintiff has a sufficient
RFC to perform jobs that exist in significant numbers in the
national economy.

Tr. 525-26.

Specifically, the ALJ found

Plaintiff has the ability to perform jobs that require light work
such as hand packager and production assembler.

Tr. 526.

DISCUSSION
Plaintiff contends the ALJ erred by (1) improperly
discrediting Plaintiff’s subjective symptom testimony;
(2) improperly discrediting the testimony of lay-witnesses Dawn
Winchester, Joni Hadley, and Robert Kufus; (3) failing to include
all of Plaintiff’s severe impairments at Step Two; (4) failing to
consider Plaintiff’s nonsevere impairments when he evaluated
Plaintiff’s RFC; and (5) failing to include all of Plaintiff’s
functional limitations in his hypothetical to the VE.
I.

The ALJ gave clear and convincing reasons for rejecting
Plaintiff’s testimony.
Plaintiff alleges the ALJ erred when he failed to give clear

and convincing reasons in accordance with SSR 96-7p for rejecting
Plaintiff's testimony as not credible.
In Cotton v. Bowen the Ninth Circuit established two

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OPINION AND ORDER

requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments, and he must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).

Cotton, 799 F.2d 1403, 1407 (9th

The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can “reject the
claimant's testimony about the severity of his symptoms only by
offering specific, clear and convincing reasons for doing so.”
Williamson v. Comm'r of Soc. Sec., No. 10-35730, 2011 WL 2421147
(9th Cir. June 17, 2011)(quoting Lingenfelter v. Astrue, 504 F.3d
1028, 1036 (9th Cir. 2007)).

General assertions that the

claimant's testimony is not credible are insufficient.
Astrue, 481 F.3d 742, 750 (9th Cir. 2007).

Parra v.

The ALJ must identify

"what testimony is not credible and what evidence undermines the
claimant's complaints."

Id. (quoting Lester v. Chater, 81 F.3d

821, 834 (9th Cir. 1995)).

The ALJ’s credibility finding “must

contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the
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OPINION AND ORDER

individual's statements and the reasons for that weight.”

SSR

96-7p, at *2.
Plaintiff testified he suffers from significant pain in his
knees, ankles, lower back, neck, arms, and chest.

Tr. 786-810.

Plaintiff attested he can stand for only half an hour due to pain
in his knees, can walk “about a block” before needing to stop and
to rest due to shortness of breath, can spend only one hour out
of an eight-hour work day standing, can sit for only half an hour
due to pain in his lower back, and can spend four hours out of an
eight-hour workday sitting.

Tr. 789-92, 799.

Plaintiff

testified he has difficulty gripping objects and that he
regularly drops objects such as coffee cups and pencils.
Tr. 795.

He attested he suffers from muscle cramps, muscle

spasms, and the rare onset of locked joints.

Tr. 794-99.

Plaintiff also testified he has difficulty seeing and hearing.
Tr. 800-01.
The ALJ found Plaintiff's medically determinable impairments
"could reasonably be expected to cause the alleged symptoms;
however, [Plaintiff's] statements concerning the intensity,
persistence, and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the [RFC]."
Tr. 522.
The ALJ found Plaintiff’s testimony (1) is undermined by
Plaintiff’s work history, (2) is inconsistent with the medical

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OPINION AND ORDER

record, (3) is belied by Plaintiff’s activities of daily living
(ADLs), and (4) is undermined by inconsistent statements.
Tr. 522-23.
The ALJ found the record reflects Plaintiff did not leave
work in 2003 due to a disability but rather stopped working
because his temporary job ended and his mother and father
requested he come to Oregon to help with their care.

Tr. 522.

The record, in fact, reflects Plaintiff was able to care for his
parents and continued to seek work after relocating to Oregon.
Tr. 349.

Leaving work for nondisability reasons is a legitimate

basis for discrediting a claimant’s subjective symptom testimony.
Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001).

The

record suggests Plaintiff is not as limited as his testimony
suggests.
The ALJ also notes Plaintiff’s stated limitations are not
consistent with the medical evidence in the record.

For example,

the ALJ pointed to the treatment notes of Andreea L. Andone,
M.D., Plaintiff’s treating cardiologist, in which Dr. Andone
indicated she would not support Plaintiff’s request for
disability.

Tr. 461.

The ALJ also pointed out that the opinions

of examining physicians Leslie Davidoff, M.D., and Patrick
Radecki, M.D., contradict Plaintiff’s stated limitations.
Tr. 523-24.

Dr. Davidoff examined Plaintiff on January 3, 2005,

and noted Plaintiff’s complaints of disabling pain from multiple

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OPINION AND ORDER

joint problems, heart disease, and peripheral neuropathy.
364-65.

Tr.

Contrary to Plaintiff’s stated limitations, Dr. Davidoff

observed Plaintiff’s “[m]otor strength is 5/5 in the upper and
lower extremities. . . .
manipulations.”

He has normal grip and fine and gross

Tr. 367.

Dr. Davidoff also concluded Plaintiff

can “stand and/or walk between 2-6 hours in an eight-hour day,”
“can sit without restrictions,” and does not have any
“manipulative . . . restrictions.”

Tr. 367.

Dr. Radecki examined Plaintiff on April 23, 2009, and noted
Plaintiff’s complaints of severe neck pain, lower back pain
(rated “20 on a scale of 10"), chest pain, blurry vision, and
numbness in his elbows and feet.

Tr. 766-67.

Dr. Radecki noted

Plaintiff moved around without difficulty, bent fully at the
waist to remove his shoes, used his arms with “great dexterity,”
had anormal gait, and his grasping ability was “fully intact.”
Tr. 767-69.

Dr. Radecki found Plaintiff exhibited “excellent”

range of motion in his neck and “fairly good” range of motion in
his lower back without radicular symptoms in either.

Tr. 770.

Dr. Radecki also noted when testing Plaintiff’s vision with a
Snellens eye chart that his vision without lenses was 20/25 in
both eyes.

Tr. 767.

Ultimately Dr. Radecki concluded Plaintiff

has the ability to stand, to walk, and to sit without limitation;
to lift and to carry normally; and to hear, to speak, to handle,
and to travel normally.

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OPINION AND ORDER

Tr. 770.

Dr. Radecki concluded

Plaintiff’s “functional ability seems to be better than what he
says.”

Tr. 770.

The opinions of Drs. Radecki and Davidoff, which include
conclusions based on objective medical testing, persuasively
suggest Plaintiff’s impairments are not as severe as he attested.
See Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1161
(9th Cir. 2008)(“Contradiction with the medical record is a
sufficient basis for rejecting the claimant's subjective
testimony.”).
The ALJ also discredited Plaintiff’s subjective symptom
testimony on the ground that Plaintiff’s ADLs belied his claims
of extreme functional limitations.

Tr. 523.

For example, the

ALJ noted the Third Party Function Report by Dawn Winchester,
Plaintiff’s friend, reflects Plaintiff’s lifestyle is more active
than he attested.

Tr. 162-70.

Winchester reported Plaintiff

spent his days caring for his elderly father, working around the
house and in the yard, and performing household chores and
repairs.

Tr. 162-66.

In addition, Plaintiff reported to an

emergency-room physician in 2006 that he had been riding a
bicycle and reported to another emergency-room physician in 2008
that he had been doing yard work.

Tr. 696, 711-12.

Moreover,

Dr. Radecki reported in his notes from his 2009 examination of
Plaintiff that

Plaintiff stated he could shop, buy groceries,

vacuum, do dishes, and that “standing is no trouble.”

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OPINION AND ORDER

Tr. 767.

Thus, the ALJ’s conclusion that Plaintiff is not as limited as he
attested at the hearing is supported by evidence in the record
that suggests Plaintiff is more capable that he described.
Finally, the ALJ also noted even though Plaintiff attested
he cannot read or write, Plaintiff stated in his Disability
Report that he could read English and could write more than his
name.

Tr. 135, 801.
After considering the record as a whole, the Court finds the

ALJ provided legally sufficient reasons supported by substantial
evidence in the record for finding Plaintiff's testimony not
entirely credible.

The Court, therefore, concludes the ALJ did

not err when he rejected Plaintiff's testimony in part.
II.

The ALJ properly rejected the lay-witness statements of Dawn
Winchester, Jodi Hadley, and Robert Kufus.
Plaintiff also contends the ALJ erred by failing to provide

legally sufficient reasons for rejecting the lay-witness
statements of Dawn Winchester, Joni Hadley, and Robert Kufus.
Lay testimony regarding a claimant's symptoms is competent
evidence that the ALJ must consider unless he "expressly
determines to disregard such testimony and gives reasons germane
to each witness for doing so."
(9th Cir. 2001).

Lewis v. Apfel, 236 F.3d 503, 511

See also Merrill ex rel. Merrill v. Apfel, 224

F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a
claimant's disability, must give full consideration to the
testimony of friends and family members.").
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OPINION AND ORDER

A.

Dawn Winchester.

Winchester provided Function Reports in 2003, 2008, and 2010
describing Plaintiff’s daily functioning.
664-71.

Tr. 162-70, 635-42,

In 2003 and 2008 Winchester described Plaintiff as

consistently able to perform household chores, to care for his
daily needs, to shop, and to prepare meals.

Tr. 163-65, 636-38.

Winchester otherwise described Plaintiff as limited in his
ability to walk, to stand, to sit, to bend, to squat, to kneel,
to lift, to climb stairs, to hear, to see, and to remember.
Tr. 167, 640.

In her 2010 report Winchester described Plaintiff

as significantly more limited with marked limitations on his
ADLs; unable to walk more than a block before needing to rest;
“extreme” levels of pain, dizziness, and repeated episodes of
decompensation; and a “complete inability to function
independently outside the area of [his] home.”

Tr. 664-68.

The ALJ summarized the statements by lay-witness Winchester
and found her descriptions of Plaintiff’s daily activities to be
“generally credible.”

Tr. 524.

The ALJ, however, concluded

Winchester’s description of Plaintiff’s functional limitations
are inconsistent with the medical evidence, which does not
demonstrate Plaintiff needs a cane or a wheelchair; does not
reflect a diagnosis of depression, any episodes of
decompensation, or a basis for Plaintiff’s dizziness; and
reflects Plaintiff is able to walk substantially more than

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OPINION AND ORDER

Winchester described.

Tr. 524.

The Court has concluded the ALJ properly discounted
Plaintiff’s credibility, particularly with respect to Plaintiff’s
statements concerning the severity, persistence, and limiting
effects of his pain.

Thus, to the extent that Winchester’s

testimony is based on Plaintiff’s subjective complaints of pain
or exaggerated pain behavior, Winchester’s observations are not
reliable in determining Plaintiff’s ability to perform workrelated functions.
The Court finds the record contradicts the extreme level of
incapacity described by Winchester.

In particular, as noted by

the ALJ, the opinions of examining physicians Radecki and
Davidoff contradict several of the limitations described by
Winchester, including Plaintiff’s ability to bend, to walk, to
stand, to see, etc.

Tr. 364-67, 766-70.

See Bayliss v.

Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005)(“An ALJ need only
give germane reasons for discrediting the testimony of lay
witnesses.

Inconsistency with medical evidence is one such

reason.”)(internal citation omitted).
The Court, therefore, concludes on this record that the ALJ
provided reasons germane to Winchester’s statements and supported
by substantial evidence in the record for the minimal weight he
assigned to her statements about Plaintiff’s limited ability to
function.

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OPINION AND ORDER

B.

Joni Hadley.

Hadley provided a Witness Statement in June 2010 describing
Plaintiff’s functionality.

Tr. 672-79.

Hadley described

Plaintiff as being markedly limited in his ADLs, as suffering
from significant pain in his ankles and numbness in his hands, as
having reduced concentration and pace (mild to moderate
limitation), as being short-tempered, and as suffering repeated
episodes of decompensation.

Tr. 672-79.

The ALJ expressly considered Hadley’s statement and found
her description of Plaintiff’s limitations not credible in light
of the medical evidence in the record, particularly the lack of
medical evidence as to Plaintiff’s difficulties with
concentration or pace and of numbness in Plaintiff’s hands.
524.

Tr.

For example, Dr. Radecki concluded Plaintiff’s neurological

function was normal, his sensation in his upper limbs was
“entirely normal,” he did not show any evidence of radicular
symptoms, his fine and gross motor skills were normal, and he did
not have any limitations on his ability to grip even with
repetition.

Tr. 769-70.

Dr. Davidoff made similar findings.

Tr. 366-67.

As noted, inconsistency with the medical evidence is

a sufficient basis to disregard lay testimony.
C.

Robert Kufus.

Kufus provided a Witness Statement in July 2010 describing
Plaintiff’s functional limitations.
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OPINION AND ORDER

Tr. 680-87.

Kufus described

Plaintiff’s limitations on his functionality and his ADLs as
“moderate.”

Tr. 680-81.

Kufus stated Plaintiff seems to always

be in “some short [sic] of pain,” including pain in his knees,
back, wrists, fingers, and knees.

Tr. 681-83.

Plaintiff complained of dizziness.

Tr. 683.

Kufus also stated

Kufus did not

otherwise describe any specific limitations on Plaintiff’s
ability to function.
The ALJ summarized Kufus’s statement and found it to be
“generally credible.”

Tr. 524.

The ALJ, however, noted the

record reflects Plaintiff has been able to maintain an active
lifestyle despite his pain and is able to care for his father, to
do outdoor chores, to perform household chores, etc.

Tr. 524.

The Court notes the ALJ does not deny that Plaintiff’s
impairments cause him some pain.

Plaintiff, however, contends

the ALJ erred when he relied on Plaintiff’s ADLs in the context
of Kufus’s statement because Plaintiff contends he need not
demonstrate his complete incapacity to prove he is disabled.
Although this is an accurate statement of the law, the ALJ used
Plaintiff’s ADLs as a means to explain why Kufus’s statement does
not warrant great weight because it only reflects Plaintiff’s
complaints of pain rather than demonstrating the specific
limiting effects of Plaintiff’s pain.

As noted, the ALJ found

Plaintiff’s limitations were not as significant as portrayed by
Plaintiff.

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In addition, the ALJ did not use Plaintiff’s ADLs as

OPINION AND ORDER

the sole basis for finding Plaintiff is capable of performing
work-related functions on a regular and sustained basis.
Accordingly, the Court concludes the ALJ provided legally
sufficient reasons germane to each lay witness for the weight he
afforded their statements.
III. The ALJ did not err at Step Two.
Plaintiff contends the ALJ erred at Step Two when he found
Plaintiff’s ankle impairment and dizziness are not severe
impairments.
The ALJ determined Plaintiff’s testimony as to his remote
ankle injuries did not provide a basis for finding any resulting
functional limitations.

Tr. 521.

The ALJ also concluded the

record does not establish Plaintiff’s dizziness is a medically
determinable impairment.

Tr. 520-21.

A severe impairment "significantly limits" a claimant's
"physical or mental ability to do basic work activities."
C.F.R. §§ 404.1521(a), 416.921(a).
1003.

20

See also Ukolov, 420 F.3d at

The ability to do basic work activities is defined as "the

abilities and aptitudes necessary to do most jobs."
§§ 404.1521(a),(b), 416.921(a),(b).

20 C.F.R.

Such abilities and aptitudes

include walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, handling, seeing, hearing, speaking;
understanding, carrying out, and remembering simple instructions;
using judgment; responding appropriately to supervision, co-

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workers, and usual work situations; and dealing with changes in a
routine work setting.

Id.

Only acceptable medical sources can

establish medically determinable impairments.

Ukolov v.

Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005).

See also 20

C.F.R. §§ 404.1513(a), 416.913(a).
The Step Two threshold is low:
[A]n impairment can be considered as not
severe only if it is a slight abnormality
which has such a minimal effect on the
individual that it would not be expected to
interfere with the individual's ability to
work . . . . [T]he severity regulation is to
do no more than allow the Secretary to deny
benefits summarily to those applicants with
impairments of a minimal nature which could
never prevent a person from working.
SSR 85-28, at *2 (Nov. 30, 1984)(internal quotations omitted).
The Ninth Circuit describes Step Two as a "de minimus screening
device to dispose of groundless claims."
1290.

Smolen, 80 F.3d at

See also Webb v. Barnhart, 433 F.3d 683, 686-88 (9th Cir.

2005).

"Great care should be exercised in applying the not

severe impairment concept."

SSR 85-28, at *4.

Plaintiff contends “[t]here was ample evidence in the
medical record, from Plaintiff’s own testimony and the evidence
of lay witnesses, that [Plaintiff’s dizziness and ankle
impairments] are severe impairments for Plaintiff.”

As noted,

however, only an acceptable medical source can establish a
medically determinable impairment.

See Ukalov, 420 F.3d at 1006.

See also 20 C.F.R. §§ 404.1513(a), 416.913(a).
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Although

Plaintiff maintains the medical evidence establishes these
impairments as severe, he does not identify any such evidence in
the record.

In his April 2009 examination, Dr. Radecki did not

note any complaints by Plaintiff about his ankle impairments or
resulting pain, did not find any instability in Plaintiff’s gait,
did not find any “foot drop,” and concluded Plaintiff’s lower
limbs were orthopedically “normal.”

Tr. 766-70.

Similarly,

neither Dr. Radecki nor Dr. Davidoff noted any complaints of
dizziness from Plaintiff or established any functional
limitations resulting from dizziness.

Tr. 365-67, 766-770.

Accordingly, the Court finds on this record that the ALJ did
not err when he found Plaintiff’s dizziness and ankle impairments
are not severe.
IV.

The ALJ did not err in evaluating Plaintiff’s RFC.
Plaintiff also contends the ALJ erred when he evaluated

Plaintiff’s RFC because he failed to discuss Plaintiff’s ability
to work on a regular and sustained basis as required by SSR 96-8p
and did not consider all of Plaintiff’s nonsevere impairments
such as anxiety; dizziness; ankle pain; and reduced
concentration, stamina, and pace.

Plaintiff also contends the

ALJ “ignored [Plaintiff’s] knee and back impairments [that] he
found were ‘severe’” when he failed to include any standing or
walking limitations.
Social Security Regulation 96-8p provides in relevant part:

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Ordinarily, RFC is the individual's maximum
remaining ability to do sustained work
activities in an ordinary work setting on a
regular and continuing basis, and the RFC
assessment must include a discussion of the
individual's abilities on that basis. A
“regular and continuing basis” means 8 hours
a day, for 5 days a week, or an equivalent
work schedule. . . . RFC is assessed by
adjudicators at each level of the
administrative review process based on all of
the relevant evidence in the case record,
including information about the individual's
symptoms and any “medical source
statements”--i.e., opinions about what the
individual can still do despite his or her
impairment(s)--submitted by an individual's
treating source or other acceptable medical
sources.
SSR 96-8p, at *2 (footnotes omitted).
Here the ALJ dedicated more than five pages of his decision
to a discussion of the evidence from Plaintiff, from lay
witnesses, and from medical sources when he was evaluating
Plaintiff’s RFC.

Tr. 520-25.

As the Court has already

concluded, the ALJ adequately explained his rationale for
accepting some but not all of Plaintiff’s testimony and the laywitness statements.

With respect to the evidence from medical

sources, the ALJ, in fact, found Dr. Davidoff’s opinion reflected
Plaintiff’s back and knee impairments require him to change
positions every hour in order to sustain light work.
521, 525.

Tr. 366-67,

The ALJ also concluded the record did not reflect

Plaintiff’s ability to perform work-related functions is limited
by dizziness, ankle impairments, or anxiety.

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Tr. 520-21.

Finally, even though Plaintiff contends the ALJ did not properly
consider “the reduced concentration, stamina, and pace which
would logically result from chronic pain,” Drs. Radecki and
Davidoff, Plaintiff’s examining physicians, did not identify any
such limiting effects.

Dr. Radecki found Plaintiff’s gross

mental status is “excellent.”

Tr. 766.

In addition, Disability

Determination Services (DDS)3 psychologist, Bill Hennings, Ph.D.,
assessed the record in May 2009 and concluded the record did not
support a finding of any mental impairment such as depression or
any mental functional limitations on Plaintiff’s ability to
maintain concentration, persistence, or pace.

Tr. 752-65.

Ultimately Plaintiff does not identify any specific evidence
in the record that contradicts these conclusions by the ALJ, and
the Court does not find any evidence to undermine the ALJ’s
assessment of Plaintiff’s RFC.
V.

The ALJ’s hypothetical to the VE was complete.
Finally, Plaintiff contends the ALJ’s hypothetical to the VE

was inadequate because it did not contain all of Plaintiff’s
work-related limitations.

Having concluded the ALJ did not err

in his assessment of Plaintiff’s RFC, the Court finds Plaintiff
does not identify any basis for the Court to conclude the ALJ’s

3

Disability Determination Services (DDS) is a federally funded
state agency that makes eligibility determinations on behalf and
under the supervision of the Social Security Administration
pursuant to 42 U.S.C. § 421(a).

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hypothetical to the VE was erroneous.
In summary, the Court has reviewed the record in its
entirety with respect to each of Plaintiff’s contentions that the
ALJ erred and concludes the ALJ has provided legally sufficient
reasons for his decision that are supported by substantial
evidence in the record.

Accordingly, the Court affirms the

decision of the Commissioner.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 7th day of February, 2012.

/s/ Anna J. Brown
___________________________
ANNA J. BROWN
United States District Judge

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