Rounds v. Commissioner Social Security Administration
Filing
24
OPINION AND ORDER. For the foregoing reasons, the decision of the ALJ is AFFIRMED. IT IS SO ORDERED. Signed on 04/24/2013 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
3:12-cv-00342-MA
HEATHER ROUNDS,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
TIM D. WILBORN
P.O. Box 370578
Las Vegas, Nevada 89137
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
KATHRYN ANN MILLER
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 901
Seattle, Washington 98104
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
MARSH, Judge
Plaintiff,
Heather Rounds,
brings this action for judicial
review of a final decision of the Commissioner of Social Security
(the
Commissioner)
denying
her
application
for
supplemental
security income (SSI) disability benefits under Title XVI of the
Act.
See 42 U.S.C.
§§
pursuant to 42 U.S.C.
§
1381-1383f.
405(g).
This court has jurisdiction
For the reasons set forth below,
I affirm the final decision of the Commissioner.
PROCEDURAL BACKGROUND
Plaintiff protectively filed an application for SSI on March
10,
2009,
social
alleging disability due to depression,
phobias,
recurring
learning disabilities,
headaches.
Tr.
160.
Her
initially and upon reconsideration.
(ALJ)
held a hearing on August 6,
represented
by
counsel
and
cognitive
schizophrenia,
disorder,
application
was
and
denied
An Administrative Law Judge
2010,
testified.
at which plaintiff was
Tr.
35-82.
David
R.
Rullman, M.D., was present throughout the hearing and testified as
a medical expert.'
Vocational Expert (VE) Paul Morrison was also
present throughout the hearing and testified.
On
September
3,
2010,
the
ALJ issued a
decision
plaintiff not disabled within the meaning of the Act.
1
finding
Tr. 21-30.
Dr. Rullman's name appears as "Dr. Roman" in the hearing
transcript. This appears to be a typographical error, as Dr.
Rullman's resume indicates the correct spelling of his name. Tr.
113.
2 - OPINION AND ORDER
After the Appeals Council declined review of the ALJ's decision,
plaintiff timely filed a complaint in this court.
FACTUAL BACKGROUND
Born on July 10, 1986, plaintiff was 22 years old on the date
of her application and 24 years old on the date of the hearing.
addition to her hearing testimony,
Function
Tr.
Report.
166-81.
plaintiff submitted an Adult
Davidson,
.Gary
disability
claim process,
plaintiff's
opinion of plaintiff's disability.
On January 28,
2009,
a
submitted
Molly C.
Tr. 182-89.
of
statement
the
his
Tr. 206.
Ph.D.,
McKenna,
conducted a
Comprehensive Neuropsychological Administrative Examination,
submitted an evaluation.
Psy.D.,
reviewed
Tr. 261-79.
plaintiff's
In
in
representative
brief
Gavin
roommate,
Plaintiff's
Lipscomb, submitted a Third Party Function Report.
addition,
In
and
In addition, Joshua J. Boyd,
records
Residual Functional Capacity Assessment.
and
submitted
a
Mental
Tr. 303-06.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
sequential
five-step
process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R.
416.920(a) (4).
§§
404.1520(a) (4),
Each step is potentially dispositive.
bears the burden of proof at Steps One through Four.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
Bowen v.
The claimant
Tackett v.
The burden shifts to
the Commissioner at Step Five to show that a significant number of
3 - OPINION AND ORDER
jobs exist in the national economy that the claimant can perform.
See Yuckert, 482 U.S. at 141-42; Tackett, 180 F.3d at 1098.
At Step One, the ALJ found that plaintiff has not engaged in
substantial gainful activity since the application date, March 10,
See 20 C.F.R.
2009.
At
Step
depressive
disorder,
Two,
§
416.971 et seq.; Tr. 23.
ALJ
disorder;
social
phobia;
not otherwise specified;
plaintiff's
that
determined
the
major
developmental
pervasive
and cognitive disorder,
not
otherwise specified were severe medically determinable impairments.
See 20 C.F.R.
§
416.921 et seq.; Tr. 23-24.
At Step Three, the ALJ found that plaintiff does not have an
impairment or combination of impairments that meet or medically
See 20 C.F.R.
equal any listed impairment.
§§
416.920(d), 416.925,
416.926; Tr. 24-25.
The ALJ found
that
plaintiff has
the
residual
functional
capacity (RFC) to perform a full range of work at all exertional
levels, but can perform only one- to two-step tasks with no public
Tr. 25-28.
contact, no teamwork, and limited coworker contact.
At Step Four, the ALJ determined that plaintiff had no past
relevant work.
At
Step
See 20 C.F.R.
Five,
§
416.965; Tr. 28.
the ALJ
however,
found
that
jobs exist
in
significant numbers in the national economy that plaintiff can
perform,
including
Recycler/Reclaimer .
4 - OPINION AND ORDER
Kitchen
See
20
Helper,
C.F.R.
Hand
§
Packager,
416.969;
Tr.
and
29-30.
Accordingly, the ALJ found that plaintiff was not disabled within
the meaning of the Act.
ISSUES ON REVIEW
First,
Plaintiff argues that the ALJ erred in five ways.
plaintiff maintains that the ALJ improperly rejected her testimony.
Second, plaintiff argues that the ALJ erred in improperly rejecting
the opinions of Drs. McKenna and Boyd.
Third, plaintiff asserts·
that the ALJ erred in failing to include plaintiff's fibromyalgia
as a medically determinable impairment at Step Two because the ALJ
failed
to
his
fulfill
duty
to
develop
Fourth,
record.
the
plaintiff submits that the ALJ erred in rejecting the lay witness
statements of Gavin Lipscomb and Gary Davidson.
Finally, plaintiff
argues that the Step Five finding was not supported by substantial
evidence because the vocational hypothetical did not contain the
limitations included in the allegedly improperly rejected evidence,
and, even if the vocational hypothetical was sufficient, the jobs
cited by the ALJ are not available under that hypothetical.
STANDARD OF REVIEW
The
court must
affirm the
Commissioner's decision
if
the
Commissioner applied proper legal standards and the findings are
supported by substantial evidence in the
405(g); Andrews v.
Shalala,
53 F. 3d 1035,
record.
1039
42
U.S. C.
(9th Cir.
§
1995).
''Substantial evidence means more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
5 - OPINION AND ORDER
Id.
mind might accept as adequate to support a conclusion."
weigh
court must
all
of the
whether
evidence,
than
one
rational
the
interpretation,
Andrews,
decision must be upheld.
or
Heckler,
If the evidence is susceptible
807 F.2d 771, 772 (9th Cir. 1986).
more
supports
Martinez v.
detracts from the Commissioner's decision.
to
it
The
Commissioner's
If the
53 F. 3d at 1039-40.
evidence supports the Commissioner's conclusion, the Commissioner
must be affirmed;
"the court may not substitute its judgment for
Edlund v. Massanari,
that of the Commissioner."
253 F.3d 1152,
1156 (9th Cir. 2001).
DISCUSSION
I.
Rejection of Plaintiff's Testimony
In deciding whether to accept subjective symptom testimony, an
ALJ must perform two stages of analysis.
416.929.
evidence
First,
of an
the
claimant
underlying
20 C.F.R.
produce
must
impairment
that
expected to produce the symptoms alleged.
F. 3d 1273, 1281-82 (9th Cir. 1996).
§§
404.1529,
objective
medical
could reasonably be
Smolen v. Chater,
80
Second, absent a finding of
malingering, the ALJ can reject the claimant's testimony about the
severity of
her symptoms only by offering specific,
convincing reasons for doing so.
clear and
Id. at 1281.
If an ALJ finds that the claimant's testimony regarding his
subjective symptoms is unreliable, the "ALJ must make a credibility
determination
citing
6 - OPINION AND ORDER
the
reasons
why
the
testimony
is
unpersuasive."
Morgan v. Apfel, 169 F. 3d 595, 599 (9th Cir. 1999).
In doing so, the ALJ must identify what testimony is credible and
what
testimony
and make
complaints,
claimant's
the
undermines
"findings sufficiently specific to permit the court to conclude
that
the
ALJ
did
arbitrarily
not
discredit
claimant's
[the)
Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002).
testimony."
The ALJ may rely upon ordinary techniques of credibility evaluation
in weighing the claimant's credibility.
Tommasetti v. Astrue, 533
F. 3d 1035, 1039 (9th Cir. 2008).
limitations
Plaintiff
based
on
her
that
reported
concentration,
follow
Report,
Function
her
In
mental
her
understanding,
instructions,
and
get
Tr.
impairments.
affected
conditions
and abilities
along
listed
exclusively
plaintiff
1vi th
to
166-73.
her
memory,
complete tasks,
others.
Tr.
Plaintiff stated that her daily routine was to wake up,
171.
feed her
"fish, cats and kid," occasionally eat breakfast, use the computer
for "quite a while," listen to music, spend time 1vith her daughter,
pet and talk to her cats, talk to her roommate, look out the window
at the trees, occasionally go to the park, put her daughter to bed,
and then stay up using the computer until late in the night.
166.
Plaintiff
sleeping.
Id.
additionally
engage
in
that
she
has
trouble
Plaintiff stated that she often forgets to eat,
shower, or brush her teeth.
can
reported
Tr.
most
7 - OPINION AND ORDER
Tr. 167.
cleaning
Plaintiff reported that she
activities,
including
sweeping,
vacuuming, washing the floors and dishes, and doing laundry, but
that it takes her all day to clean, and somebody has to "constantly
stated
that
daughter,
her
only
social
activities
168.
Tr.
complain about a mess" for her to notice.
are
to
talk
Plaintiff
with
her
roommate, mother, and a "couple online people," and to
play a board game with her daughter.
Plaintiff reported
Tr. 170.
that to go out of the house she needs somebody that she trusts to
accompany her.
Id.
Plaintiff also noted that she has "always been
pretty bad with money," not knowing how much change she is supposed
to receive or how much money to give to a cashier.
Id
At the hearing, plaintiff stated that her fibromyalgia causes
pain in her back, shoulders, and neck that is typically moderate,
but
can
occasionally
become
severe.
Tr.
60-61.
Plaintiff
testified that she can still move around, but that she has severe
pain that causes difficulty functioning three
month.
Id.
to six days per
Plaintiff stated that she has difficulty lifting and
carrying heavy objects, and that her fibromyalgia symptoms worsen
in cold weather.
Tr.
65.
In addition, plaintiff testified that
her fibromyalgia caused fatigue that contributes to her lack of
functionality.
Tr. 65-66.
Plaintiff additionally testified that
she frequently has an upset stomach.
Tr. 56-57.
The ALJ rejected plaintiff's subjective testimony because her
alleged limitations are inconsistent with the greater level of
functionality reflected in her medical records, plaintiff has been
8 - OPINION AND ORDER
uncooperative
sources
treating
with
use
the
concerning
of
medications and therapy, and because the record indicates plaintiff
only accesses medical and psychological resources when she has a
secondary gain motivation, but otherwise has shown little interest
in treatment.
Tr. 26-27.
I conclude that these reasons together
amount to clear and convincing reasons for rejecting plaintiff's
testimony, and are supported by substantial record evidence.
The ALJ reasonably found that the medical record showed a
greater level of functionality and potential functionality than
plaintiff alleged.
Notably, plaintiff reported to Dr. McKenna that
"[s]he believes she is capable of working,
social
contact,
plaintiff
told
if
Dr.
Tr.
possible."
McKenna
that
but prefers to avoid
"[s]he
the
As
262.
spends
volunteering at a Muscular Dystrophy charity,
a
ALJ
noted,
typical
day
attending Project
Enterprise at the PCC North Metro DHS Office, and working on her
resume."
Id.
In addition, Dr. McKenna noted that, "[d]espite her
discomfort in social communications,
positive
relationships
with others,
relationships and close friends."
Id.
[plaintiff] reports multiple
including
several
romantic
As the ALJ noted, plaintiff
reported to Dr. McKenna that she is "independent for all activities
of daily living, including meal preparation, cleaning, laundry, and
managing finances."
Tr. 263.
The ALJ's finding that plaintiff's
testimony was inconsistent with statements contained in the medical
record is supported by substantial evidence in the record,
9 - OPINION AND ORDER
and
constitutes a compelling reason to reject plaintiff's subjective
symptom testimony.
The ALJ also reasonably found that plaintiff was uncooperative
with many of her treating medical and psychological providers.
inadequately explained
failure
to
An
comply with medical
seek or
treatment is a proper basis upon which an ALJ may discredit a
claimant's testimony.
Fair v. Bowen, 885 F.3d 597, 603 (9th Cir.
198 9) .
In a February of 2009 follow up to Dr. McKenna's evaluation,
plaintiff indicated that "[s)he is not interested in continuing
treatment as she does not get any benefit from it."
270.
Tr.
Later in 2009, plaintiff saw Jessica M. Harrison, LCSW, and Sheryl
A. Hedges, PMHNP, on a few occasions.
presented
to
Ms.
to
Hedges
On April 3, 2009, plaintiff
initiate
and,
treatment,
after
demonstrating several odd behaviors, reported that she would pick
up prescribed medication from the pharmacy, but may not take it.
Tr.
285-86.
On April
7,
plaintiff met with Ms.
Harrison,
and
reported that she had a depressed mood, but was "hesitant to seek
out assistance in treating her depression."
Tr. 285.
At a follow
up appointment on April 16, Ms. Harrison noted odd mannerisms, and
that plaintiff would benefit from therapy "given her reluctance to
utilize medication therapy."
Tr. 284.
The next week, Ms. Hedges
again noted plaintiff's reluctance to take medication, and stated
that counseling was the best treatment option.
10 - OPINION AND ORDER
Tr. 283.
On August
3,
Harrison
Ms.
however,
that
reported
plaintiff
"some
had
disinterest in therapy, but says 'I guess I'll give it a try for
now,'" and that plaintiff "does not want to take medications,"
because she is skeptical about them.
Tr. 282.
It does not appear
In addition, with
plaintiff saw Ms. Harrison or Ms. Hedges again.
the
exception
of
a
relatively
brief
period
counseling
of
in
relation to regaining custody of her daughter in 2004 and 2005, the
record
is
treatment
devoid of any
for
any mental
conditions before plaintiff applied for disability.
or
physical
Tr. 234-49.
The ALJ reasonably discounted plaintiff's credibility because she
was not cooperative with medical providers.
Finally, the ALJ reasonably discredited plaintiff's testimony
because plaintiff appeared to only seek medical treatment when she
had a secondary gain motive to do so, such as regaining custody of
her daughter, receiving a letter to allow her to keep her cat, or
In 2004
obtaining documentation for her disability claim.
and
2005, plaintiff underwent two evaluations for purposes of regaining
Tr. 234-49.
custody of her daughter.
stated
that
she
was
seeking
On March 23, 2009, plaintiff
treatment
because
interested in receiving a letter to "keep [her]
286.
she
was
mainly
two cats."
Tr.
In August of 2009, plaintiff began her most consistent period
of therapy because she was "seeking treatment to have documentation
for a disability claim."
continued
this
course
ll - OPINION AND ORDER
of
Tr.
364.
therapy
While plaintiff consistently
at
LifeWorks
NW,
she
again
restated
on
December
"came
she
that
2009,
17,
Tr. 353.
originally because she has applied for SSI."
In addition,
the March 23,
counseling
for
2009 appointment
is
the
first
instance of an appointment with a physical medical treating source,
although most of the chart note discusses plaintiff's psychological
difficulties and ultimately resulted in the referral to Ms. Hedges.
The next treatment reference from a treating source
Tr. 286-88.
for plaintiff's alleged physical ailments does not appear until
March 12, 2010, which is the earliest dated finding of fibromyalgia
Tr. 317.
in the record.
All of these encounters took place after
plaintiff applied for disability benefits on March 10, 2009.
Some
plaintiff's
of
motivations
secondary
seeking
the fact that their
Nonetheless,
treatment are understandable.
for
associated treatment constitutes the overwhelming majority of the
treating medical record in this case supports the ALJ's finding
that
plaintiff's
primary
resources
psychological
for
motivation
were
reasons
seeking
other
underlying medical and psychological conditions.
than
medical
and
treating
her
The ALJ' s finding
in this respect is supported by substantial record evidence and
constitutes
a
compelling
reason
for
rejecting
plaintiff's
testimony.
I conclude that the above reasons, taken together, constitute
clear and convincing reasons for rejecting plaintiff's testimony.
12 - OPINION AND ORDER
The ALJ did not err in discrediting plaintiff's subjective .symptom
testimony.
II.
Rejection of Medical Testimony
Plaintiff next argues that the ALJ erred in failing to fully
incorporate the limitations described by Drs. McKenna and Boyd into
the
The
RFC.
reasons
Commissioner
to reject
provide
and
clear
convincing
treating or
uncontradicted opinion of a
the
examining physician.
must
Lester v. Chater, 81 F.3d 821, 830-31 (9th
Where a physician's opinion is contradicted by that of
Cir. 1995).
another physician, the ALJ may reject the physician's opinion by
providing specific and legitimate reasons supported by substantial
evidence in the record.
Id.
"'The ALJ need not accept the opinion
of any physician, including a treating physician, if that opinion
is
conclusory,
brief,
findings.'"
and
inadequately
supported
by
clinical
Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012)
(quoting Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th
Cir. 2009)).
evidence,
"'Where . . . the record contains conflicting medical
the ALJ is
charged with determining credibility
and
Barnhart,
331
resolving the conflict.'"
F.3dl030,
1040
translating
the
(9thCir.
claimant's
limitations in the RFC.
(quoting Benton v.
2003)).
medical
The ALJ is responsible for
conditions
into
functional
See Stubbs-Danielsen v. Astrue, 539 F.3d
1169, 1174 (9th Cir. 2008).
13 - OPINION AND ORDER
Id.
Ultimately, the RFC is sufficient if
it
restrictions
"consistent with
is
identified
in the medical
Id.
testimony."
The ALJ credited the opinions of both Drs. Boyd and McKenna,
Plaintiff
and stated that the RFC was supported by both opinions.
that
argues
the
ALJ
omitted
limitations
identified
by
both
psychologists.
A.
Dr. McKenna
Dr.
McKenna
evaluation.
"Clinical
Tr.
and
submitted
examined
plaintiff
261-69.
At the end of the
Formulation/Progno sis,"
Dr.
McKenna
a
thorough
section entitled
concluded
the
following:
At this time the primary impediments to returning this
evaluee to full-time gainful employment are her severe
social anxiety, unusual beliefs and perceptions, limited
verbal and working memory, and poor mental organization.
She is independent for all activities of daily living,
and continues to manage her own affairs with little
Her deficits are primarily social and
difficulty.
With appropriate placement in training or
cognitive.
employment, she is a good candidate to return to work.
However, it should be noted that her unusual beliefs,
strong interests in only a few areas, and occasionally
odd reasoning may make it hard for her to engage with
some types of training programs. She also may struggle
to overcome her social anxiety enough to build good
working relationships with case managers, instructors, or
therapists.
Tr.
268.
In
the
next
section,
entitled
"Treatment
Recommendations," Dr. McKenna outlined many recommended treatment
options irrelevant to present functional limitations, but also made
workplace recommendations:
14 - OPINION AND ORDER
11.
12.
13.
14.
15.
18.
She should avoid positions that require a great
deal of math.
She should write down information to be remembered
later. She should use "cheat sheetsn for regularly
numbers,
codes,
as
such
information
used
definitions, etc.
She should inform her instructors and supervisors
that she requires information to be repeated to be
recalled best.
She should use memory compensatories such as post-it
notes, reminder phone calls, address books, calendars,
She may wish to record
etc. to remember information.
instructions/important information for later review.
She should have information both explained verbally
and provided in written form.
* * *
She should seek positions that limit customer or
public contact.
Tr. 269.
In the RFC, the ALJ limited plaintiff to performing one- to
t\vo-step tasks with no public contact,
coworker contact.
Tr. 25.
no teamwork,
and limited
Plaintiff argues that these limitations
in the RFC fail to adequately incorporate some of Dr. McKenna's
recommendations,
Because
I
conclude
that
the
ALJ
reasonably
translated the functional limitations described by Dr. McKenna into
the RFC, I disagree.
In incorporating functional limitations from a medical opinion
into the RFC, an ALJ may rely on specific imperatives rather than
recommendations.
See Carmickle v. Comm'r Soc. Sec. Admin, 533 F.3d
1155, 1165 (9th Cir. 2008).
accommodate
paragraph
of
the
the
limitations
Clinical
15 - OPINION AND ORDER
The limitations in the RFC adequately
found
in
Dr.
McKenna's
Formulation/Prognosis
concluding
section.
The
to
limitation
plaintiff's
memory
mental
and
reasonably
tasks
two-step
or
one-
accommodates
limitations.
organization
The
limitation to no public contact, no teamwork, and limited coworker
contact adequately accommodates plaintiff's social limitations.
The
ALJ' s
on
reliance
Formulation/Progno sis"
reasonable.
the
in
the
"Clinical
fashioning
the
RFC
imperatives
section
in
was
See Carmickle, 533 F.3d at 1165.
Nonetheless, I conclude that Dr. McKenna's recommendations are
The recommendations
also adequately accounted for in the RFC.
regarding the use of cheat sheets, reminders, and post-it notes,
for example, merely go to the afor'ementioned memory limitations
which the ALJ reasonably accounted for by limiting plaintiff to
one- to two-step tasks.
Additionally,
I
note that many of the
recommendations in Dr. McKenna's opinion, such as the use of postit notes or cheat sheets, are commonly available in the workplace.
In sum, I find that the ALJ appropriately translated the medical
conditions found by Dr. McKenna into functional limitations in the
RFC,
and
testimony.
the
RFC
is
therefore
consistent
with
See Stubbs-Danielsen, 539 F.3d at 1174.
the
medical
The ALJ did
not reject Dr. McKenna's opinion.
B.
Dr. Boyd
Dr. Boyd reviewed plaintiff's records and completed a Mental
Residual Functional Capacity Assessment (MRFC).
the MRFC, Dr. Boyd found:
16 - OPINION AND ORDER
In Section III of
AB
The [claimant] would not be significantly limited
in understanding/memory or sustained concentration
or pace for simple tasks.
[Claimant's] severe
social anxiety would likely interfere [with] her
consistently carrying out more detailed tasks. The
[claimant] should not work closely with or in
coordination with coworkers.
The [claimant] should avoid engaging the public.
Interactions should be limited to very brief and
infrequent contact due to [medically determinable
impairments] .
The [claimant] occasionally may need help to set
realistic goals.
C
D
Tr. 305.
failed
Plaintiff, for good reason, does not argue that the ALJ
to
plaintiff
incorporate
argues
these
that
the
limitations
ALJ
failed
in
to
the
RFC.
include
Rather,
limitations
described in boxes checked in Section I of the MRFC worksheet.
The
Ninth
Circuit
Court
of Appeals,
however,
found
this
argument "strained" in Israel v. Astrue. 494 Fed.Appx. 794, 2012
WL 4845578,
cited
the
at *3
Social
(9th Cir. Oct.
Security
12,
2012).
Administration's
The Ninth Circuit
Program
Operations
Manual System (POMS) for its explanation that "Section I is 'merely
a worksheet
Instead,
' [ i] t
and does not constitute the RFC assessment.'
is the narrative written by the psychiatrist or
psychologist in [S]ection III .
the assessment of RFC. '"
citations omitted) . 2
Thus,
Id.
that adjudicators are to use as
at *2 n.1
(emphasis and internal
the ALJ need not incorporate every
'Plaintiff's argument that I should ignore the POMS because
it does not carry the force of law misses the mark. Like the
Ninth Circuit in Israel, I find the POMS persuasive in this
instance.
17 -OPINION AND ORDER
The ALJ did not
checked box in Section I into the ultimate RFC.
reject Dr. Boyd's opinion because the RFC "adequately capture[d)"
the limitations described therein.
See Israel, 2012 WL 4845578, at
*3 (quoting Stubbs-Danielson, 539 F. 3d at 1174).
Because the RFC
adequately captured the findings of Drs. Boyd and McKenna, the ALJ
did not erroneously reject their opinions.
III. Exclusion of Fibromyalqia at Step Two
Plaintiff argues that the ALJ erred in excluding fibromyalgia
as a severe medically determinable impairment at Step Two because
the ALJ failed to fulfill
his duty to develop the record.
In
social security cases, the ALJ "has an independent 'duty to fully
and fairly develop the record and to assure that the claimant's
interests are considered.'" Tonapetyan v. Halter,
1150 (9th Cir. 2001)
extends
to
the
242 F.3d 1144,
(quoting Smolen, 80 F. 3d at 1288).
represented
as
well
as
to
the
"This duty
unrepresented
claimant," but the ALJ must be "especially diligent" where the
claimant is unrepresented.
Id.
The duty to develop the record is
triggered where the record contains ambiguous evidence or the ALJ
finds the record is inadequate to allow for a proper evaluation of
the evidence.
Id.
"The ALJ may discharge this duty in several
ways, including: subpoenaing the claimant's physicians, submitting
questions to the claimant's physicians, continuing the hearing, or
keeping the record open after the hearing to allow supplementation
of the record."
Id.
18 - OPINION AND ORDER
Plaintiff argues that the medical record was ambiguous as to
the medical determinability of her fibromyalgia diagnosis, so as to
trigger the ALJ's duty to develop the record.
Ukolov v. Barnhart,
(quoting 42 U.S.C.
2005)
omitted).
the
"if
clinical
acceptable
techniques."'
to be
an impairment must be "'demonstrable by
medically determinable,
medically
Generally,
§§
and
laboratory
diagnostic
420 F.3d 1002, 1005 (9th Cir.
423(d) (3), 1382c(a) (3) (D))
(emphasis
As such, an impairment is only medically determinable
record
signs
includes
the
results
of
'medically
acceptable clinical diagnostic techniques,' such as tests- as well
as
symptoms,
i.e. ,
[her) impairment."
[the
Id.
College of Rheumatology
plaintiff' s]
representations
regarding
With respect to fibromyalgia, the American
(ACR)
lists the diagnostic criteria as
"patient reports of pain when at least 11 of 18 points cause pain
when palpated by the examiner's thumb."
Welfare Benefit Plan,
Corp.
Jordan v. Northrop Grumman
370 F. 3d 8 69,
872
(9th Cir.
2004),
overruled on other grounds by Abatie v. Alta Health & Life Ins.
Co., 458 F.3d 955, 969 (9th Cir. 2006); Rollins v. Massanari, 261
F. 3d 853, 855 (9th Cir. 2001).
In this case, an undated, 3 unsigned chart note constitutes the
only record with any reference to the
fibromyalgia.
Tr. 310.
3
diagnostic findings
for
In the chart note, the unnamed provider
Although the record lists the "Encounter Date" as March
23, 2009, that date similarly appears on chart notes dated, among
others, April 24 and August 3, 2009. Tr. 310-12.
19 - OPINION AND ORDER
and
exam"
on
points
[t] ender
"multiple
referenced
listed
fibromyalgia under the section entitled "Assessment/ Plan."
310.
Tr.
Robert Henriques, M.D., noted fibromyalgia in treatment notes
dated April 13 and May 13, 2010, but did not make any diagnositc
Tr. 324-35.
findings.
record
The
the
before
ALJ
qualify
to
insufficient
was
fibromyalgia as a medically determinable impairment because there
was
no unambiguous
"medically acceptable clinical diagnostic technique, "
i.e. ,
the
Rather, the record
ACR's criteria of 11 out of 18 tender points.
Plaintiff
310.
Tr.
merely mentions "multiple" tender points,
relevant
the
indication that plaintiff met
argues that this evidence was sufficiently ambiguous to trigger the
ALJ's duty to further develop the record, and that the ALJ failed
to do so.
I agree with plaintiff that this is the sort of ambiguous
triggers
duty
the ALJ' s
to
further
develop
the
evidence
that
record.
I conclude, however, that the ALJ fulfilled this duty by
leaving the record open for two weeks after the hearing.
Plaintiff
was
represented
by
counsel
at
the
hearing.
Plaintiff's counsel questioned plaintiff about her fibromyalgia
58-61.
diagnosis.
Tr.
plaintiff's
counsel,
the
In the midst of a
ALJ,
and
the
discussion between
medical
expert
at
the
hearing, plaintiff's counsel acknowledged the diagnostic ambiguity
in the
record concerning fibromyalgia ,
20 - OPINION AND ORDER
saying "I'm the one,
I
think, brought up the idea the fibromyalgia shows up in the middle
[of the record],
and if you go back and try to find it's
origin, and it's very difficult to do."
Tr. 72.
record open for two weeks after the hearing.
[sic]
The ALJ left the
Tr. 81.
Although the
record was left open for the stated purpose of obtaining additional
therapy records from LifeWorks NW, there is no indication it was
exclusively limited to that purpose.
I hold that the ALJ discharged his duty to further develop the
record as to the ambiguity regarding the fibromyalgia diagnosis
because
plaintiff
was
represented
by
counsel
at
the
hearing,
plaintiff's counsel acknowledged the record's ambiguity as to the
fibromyalgia' diagnosis,
and the ALJ kept the record open for an
additional two weeks after the hearing.
See Tonapetyan, 242 F.3d
at 1150 (recognizing that an ALJ discharges the duty to develop the
record by keeping the record open after the hearing).
Simply put,
plaintiff's counsel knew of an ambiguity in the record, and had an
opportunity to clarify that ambiguity, but failed to do so.
This
is not a circumstance where the ALJ failed to fully develop the
record, but rather an instance in which plaintiff failed to carry
her burden.
Because the record did not contain documentation of
the requisite findings to diagnose fibromyalgia,
err by excluding it at Step Two.
Ill
Ill
21 - OPINION AND ORDER
the ALJ did not
IV.
Rejection of Lay Witness Testimony
Plaintiff next argues that the ALJ cited legally insufficient
reasons
for
partially rejecting
the
statements
lay witness
of
plaintiff's roommate, Gavin Lipscomb, and her social security claim
representative,
Lay
Davidson.
Gary
testimony
regarding
a
claimant's symptoms or how an impairment affects her ability to
work is competent evidence that an ALJ must take into account.
Molina v. Astrue, 674 F. 3d 1104, 1114 (9th Cir. 2012).
To discount
lay witness testimony, the ALJ must give reasons that are germane
to the witness.
Id.
Mr. Lipscomb
A.
Mr. Lipscomb submitted a Third Party Function Report listing
limitations that largely mirrored those described by plaintiff.
Tr.
In the "Remarks" section on the last page of the
182-89.
Function
Report,
Mr.
Lipscomb. noted that plaintiff
reason to want to work."
statements
as
Tr. 189.
descriptive
of
" [ s] ees
no
The ALJ accepted Mr. Lipscomb's
his
perception
of
plaintiff's
limitations, but ultimately concluded that it did not change the
RFC because Mr. Lipscomb's statement that plaintiff "sees no reason
to want to work," was indicative of secondary gain motives rather
than an actual inability to work.
Tr. 189.
I conclude that this
is a sufficient reason to discredit Mr. Lipscomb's testimony.
The
ALJ reasonably interpreted Mr. Lipscomb's statement as suggesting
22 - OPINION AND ORDER
plaintiff's lack of employment was elective rather than caused by
disability.
B.
Mr . D;widson
Mr. Davidson was plaintiff's appointed representative for the
purpose of filling out disability documents and gathering evidence.
Tr. 85.
Mr. Davidson made a statement of his personal opinion in
a portion of a Disability Report he filled out and submitted on
plaintiff's behalf.
Mr. Davidson opined, in full:
Tr. 206.
I have been working with Ms. Rounds for several months.
It is difficult to work with her because of her memory
she need to be going to mental health we are
problems.
She is currently is not able to be
working on this.
employed. we are working on getting her what she needs.
It will clearly take more then a year to possible get her
where she might work in something other then a sheltered
work shop [.)
Tr.
In his decision,
206 (errors in original).
the ALJ did not
address Mr. Davidson's opinion.
As an initial matter,
I
question whether the opinion of a
claimant's disability representative is competent "lay testimony"
that the ALJ must address in the disability determination.
Mr.
Davidson's opiniDn is competent lay testimony,
ALJ' s
error
in
failing
to
address
it
is
Even if
however,
harmless.
The
the
vast
majority of Mr. Davidson's statement flatly opines that plaintiff
is disabled.
Such a determination is a legal conclusion reserved
to the Commissioner.
See Tonaoetyan, 242 F.3d at 1148.
other symptom or functional limitation Mr.
23 - OPINION AND ORDER
The only
Davidson notes is his
reference to difficulty working with plaintiff caused by "memory
Tr.
problems."
206.
Because this vague reference is no more
limiting than any other reference to memory limitations in the
record, the ALJ adequately accounted for it by limiting plaintiff
to one- to two-step tasks in the RFC.
Thus,
any error in the
failure to comment on Mr. Davidson's opinion was harmless because
it was "inconsequential to the ultimate disability determination."
See Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir.
2006) .
V.
Step Five Finding
Finally,
plaintiff argues that
the Commissioner failed to
carry her burden at Step Five because the vocational hypothetical
did not capture all of plaintiff's limitations and because the jobs
identified by the ALJ are not supported by the RFC.
When an ALJ
finds that the claimant's impairments preclude him from performing
past relevant work, the burden shifts to the Commissioner at Step
Five to show that the claimant can perform other work that exists
in significant numbers in the national economy.
Soc.
Sec.
Admin.,
616
F. 3d
1068,
1071
Lockwood v. Comm'r
(9th Cir.
2010).
The
Commissioner can meet this burden by having a vocational expert
testify at the hearing based on a vocational hypothetical.
(quoting Tackett, 180 F.3d at 1101).
Id.
A vocational hypothetical is
sufficient if it includes all of the claimant's limitations that
are supported by substantial evidence in the record.
24 - OPINION AND ORDER
See Bayliss
An ALJ may
427 F.3d 1211, 1217-18 (9th Cir. 2005).
v. Barnhart,
exclude limitations
unsupported by substantial evidence in the
Id.
record.
In this case, the vocational hypothetical contained all of the
limitations the ALJ found were supported by substantial evidence.
For
conclude
I
Thus,
the
that
the
evidence.
substantial
by
supported
above,
discussed
reasons
the
is
RFC
vocational
hypothetical was adequate.
Plaintiff finally argues that the jobs identified by the ALJ
are not supported by the RFC because they each require a General
Educational
Dictionary
(GED)
Development
Occupational
of
that the claimant be able to
as
(DOT).
Titles
without citation to authority,
Two,
Level
defined
in
the
asserts,
Plaintiff
that GED Level Two's requirement
~[a]pply
commonsense understanding to
carry out detailed but uninvolved written or oral instructions," is
necessarily inconsistent with the RFC' s restriction of plaintiff to
or two-step tasks."
~one-
There is no binding authority on this issue,
the
within
courts
limitation to
Ninth
Circuit
are
split
as
and district
to
whether
a
~one-
to two-step tasks" in the RFC is consistent
~
[a]pply common sense understanding to carry out
with bring able to
detailed but uninvolved written or oral instructions" at GED Level
Two.
See
1003631,
at
Gonzalez
*4
v.
(E. D.
25 - OPINION AND ORDER
Colvin,
No.
1:10-cv-01330-SKO,
Mar.
13,
2013)
Cal.
(noting the
2013
WL
lack of
binding authority and citing cases reaching different conclusions
on this question).
The issue in this instance, however, is whether
the ALJ was entitled to rely on the VE's expert testimony that the
plaintiff, pursuant to the RFC adequately described by the ALJ,
If the ALJ' s
could perform jobs that required GED Level Two.
on
reliance
the
was
testimony
VE's
supported
by
substantial
evidence, then, I must find that the ALJ carried his burden at Step
u.s.c.
See 42
Five.
§
405(g);
Andrews,
53 F.3d at 1039.
The
substantial evidence standard does not require absolute certainty,
but rather it must be "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
Andrews,
53
F.3d at 1039.
Here,
a reasonable mind could accept the VE's testimony as
adequate to support the conclusion that plaintiff can perform other
work that exists in significant numbers in the national economy.
I
find
that
the
VE' s
testimony
that
the
RFC,
including
the
limitation to one- to two-step tasks, was consistent with jobs that
required a GED Level Two was at least arguably correct.
In this
case, there was no allegation that plaintiff had any intellectual
limitations
or
lacked
the
ability
to
understand
instructions.
Rather, the one- to two-step task limitation dealt primarily with
plaintiff's memory limitations.
Thus, the VE's implicit conclusion
that plaintiff could "[a]pply commonsense understanding to carry
26 - OPINION AND ORDER
out
detailed
but
uninvolved"
instructions
not
is
necessarily
inconsistent with plaintiff's limitation to one- to two-step tasks.
then,
The ALJ,
could
reasonably
the
rely on
testimony that plaintiff could perform the
jobs he
VE' s
expert
described.
Therefore, the ALJ was entitled to rely on the VE's testimony in
determining that plaintiff can perform other work that exists in
significant numbers in the national economy.
See Lockwood,
616
F.3d at 1071.
CONCLUSION
For
the
foregoing
reasons,
the
decision
of
the
ALJ
AFFIRMED.
IT IS SO ORDERED.
DATED this
~day
of April, 2013.
~
Malcolm F. Marsh
United States District Judge
27 - OPINION AND ORDER
is
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