Scott v. Commissioner of Social Security

Filing 17

OPINION & ORDER: The Commissioner's decision is reversed and remanded for additional proceedings. See 24-page opinion & order attached. Ordered by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

TAMMY RENEE SCOTT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
Lisa R.J. Porter
16200 SW Pacific Hwy, Suite H-280
Portland, OR 97224
Attorney for Plaintiff
S. Amanda Marshall
U.S. Attorney’s Office
District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97201-2902
///
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1 - OPINION & ORDER

No. 3:13-cv-00502-HZ
OPINION & ORDER

Heather L. Griffith
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Tammy Renee Scott brings this action for judicial review of the Commissioner’s
final decision denying her application for Supplemental Security Income under Title XVI of the
Social Security Act and for Disability Insurance Benefits under Title II of the Social Security
Act. I have jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). For
the following reasons, I reverse the Commissioner’s decision and remand for additional
proceedings.
BACKGROUND
Plaintiff was born in 1966 and was 40 years old at the alleged onset of disability. Tr.
222. She completed a General Educational Development (GED) test and some college and
reports past work as a caregiver and cashier. Tr. 63, 262, 267. Plaintiff alleged disability since
March 31, 2006 due to cervical cancer, chronic obstructive pulmonary disease, post-traumatic
stress syndrome (PTSD), memory problems, myocardial problems, high blood pressure, urinary
problems, two previous heart attacks, hearing problems, leg problems, migraines, cramping pain,
anxiety attacks, panic attacks, and depression. Tr. 94, 261.
The Commissioner denied her application initially and upon reconsideration, and an
Administrative Law Judge (“ALJ”) held a hearing on July 8, 2011. Tr. 38-90, 131-40, 144-50.
The ALJ held a supplemental hearing on October 5, 2011. Tr. 91-115. The ALJ found Plaintiff

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not disabled on October 21, 2011. Tr. 18-31. The Appeals Council denied review of the matter
on January 23, 2013, making the ALJ’s decision the final decision of the Commissioner. Tr. 1-3.
SEQUENTIAL DISABILITY ANALYSIS
A claimant is disabled if 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. See Valentine v.
Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, the agency uses a five-step
procedure to determine disability). The claimant bears the ultimate burden of proving disability.
Id.
In 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), 416.920(b). In 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), 416.920(c). If not, the
claimant is not disabled.
In step three, the Commissioner determines whether the impairment meets or equals “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),
416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner
proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (“RFC”) to perform “past relevant work.” 20

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C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the
claimant cannot perform past relevant work, the burden shifts to the Commissioner. In 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), 416.920(e) & (f). If the Commissioner meets his
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, 416.966.
THE ALJ’S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since her alleged onset date through her date of last insured. Tr. 23. At step two, the
ALJ found Plaintiff’s uterine cancer, chronic pain, depressive disorder, and amphetamine
dependence (in remission) to be “severe” impairments. Id. At step three, the ALJ found that the
impairments, singly or in combination, did not meet or equal a listed impairment. Tr. 24. The
ALJ assessed Plaintiff’s RFC and concluded that she could perform “light work as defined in 20
CFR 404.1567(b) and 416.967(b) except: occasionally climb, stoop, crouch, crawl, and kneel; no
concentrated exposure to noxious fumes and odors; perform only simple, entry level work; and
occasional public interaction.” Tr. 25. At step four, the ALJ found that Plaintiff was unable to
perform any past relevant work. Tr. 30. At step five, the ALJ found there were jobs existing in
the national economy in sufficient numbers that Plaintiff can perform. Id. The ALJ therefore
found Plaintiff not disabled. Tr. 31.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if the Commissioner
applied proper legal standards and the findings are supported by substantial evidence in the
record. 42 U.S.C. § 405(g); Batson v. Comm’r, 359 F.3d 1190, 1193 (9th Cir. 2004).

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“Substantial evidence” means “more than a mere scintilla, but less than preponderance.” Bray v.
Comm’r, 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id.
This court must weigh the evidence that supports and detracts from the ALJ’s conclusion.
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d
715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the
Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see
also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the
evidence are insignificant if the Commissioner’s interpretation is a rational reading. Id.; see also
Batson, 359 F.3d at 1193. However, this court cannot now rely upon reasoning the ALJ did not
assert in affirming the ALJ’s findings. Bray, 554 F.3d at 1225-26 (citing Sec. & Exch. Comm’n
v. Chenery Corp., 332 U.S. 194, 196 (1947)); see also Connett v. Barnhart, 340 F.3d 871, 874
(9th Cir. 2003) (citing same).
DISCUSSION
Plaintiff argues that the ALJ made the following errors: 1) improperly found that Plaintiff
was not credible; 2) improperly discounted lay witness testimony; 3) improperly evaluated
medical testimony; 4) failed to properly discuss Plaintiff’s activities of daily living (“ADLs”);
and 5) presented an invalid hypothetical to the vocational expert (“VE”).
I. Plaintiff’s Credibility
The ALJ found that Plaintiff’s statements concerning the intensity, persistence, and
limiting effects of her symptoms “have limited credibility.” Tr. 26, 27. The ALJ is responsible
for determining credibility. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). Once a

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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’r, 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”) (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.
In his opinion, the ALJ gave a number of reasons for his credibility determination
including: 1) Plaintiff’s inconsistent statements; 2) Plaintiff’s noncompliance with prescribed
medication; and 3) the lack of objective medical evidence to support Plaintiff’s allegations. Tr.
27-28. Plaintiff argues that the ALJ erred by basing his credibility determination on his “belief”
that “Plaintiff’s pain is out of proportion with the medical evidence.” Pl.’s Opening Br. 26.
Defendant counters that the ALJ properly discounted Plaintiff’s subjective complaints. Def.’s
Br. 6.
A. Inconsistent Statements
The ALJ discounted Plaintiff’s credibility because of her inconsistent statements. Tr. 27

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& nn. 1, 2. The ALJ correctly noted that Plaintiff denied having hallucinations and suicidal
ideation in a psychological exam conducted by Dr. M. John Givi, Ph.D., on March 25, 2008, yet
testified at the July 8, 2011 hearing that she had hallucinations daily and thought about
committing suicide once or twice a week. Tr. 57-58, 534. The ALJ correctly noted that Plaintiff
told Dr. Andrea Axtell, M.D., during an office visit on July 17, 2007 that she was sexually active
with her husband, yet testified at the July 8, 201l hearing that she had not been able to engage in
sex with her husband since 2006. Tr. 61, 455. Thus, the record supports that the ALJ properly
considered Plaintiff’s contradictory statements in making the credibility determination. See, e.g.,
Orteza, 50 F.3d at 750; see also SSR 96-7p, 1996 WL 374186, at *5 (July 2, 1996) (“One strong
indication of the credibility of an individual’s statements is their consistency, both internally and
with other information in the case record.”).
B. Noncompliance with Medication
The ALJ discounted Plaintiff’s credibility because a drug test indicated that she was
noncompliant with her pain medication. Tr. 27. “[U]nexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of treatment” may support a negative
credibility finding. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); see also SSR 96-7p,
1996 WL 374186, at *7 (“[An] individual’s statements may be less credible if . . . the medical
reports or records show that the individual is not following the treatment as prescribed and there
are no good reasons for this failure.”). The record shows that Plaintiff received a 28-day supply
of Vicodin on July, 30, 2010. Tr. 696; see also Tr. 702 (July, 30, 2010 Office Visit record in
which Dr. Amy Earhart, M.D., noted that Plaintiff was to continue taking Vicodin for pain).
However, Plaintiff tested negative for Vicodin on August 5, 2010. Tr. 665.

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Plaintiff argues that the ALJ erred in undermining Plaintiff’s credibility on the basis of
the drug test. Pl.’s Opening Br. 26. Plaintiff maintains that the medical records from the Native
American Rehabilitation Association (“NARA”) health clinic expressed no concern regarding
the negative Vicodin test and provided no indication that Plaintiff was not in pain. Id. Plaintiff
further asserts that NARA records document phone calls from Plaintiff’s daughter regarding
Plaintiff’s “inability to walk and non-stop crying from pain.” Id. (citing Tr. 716).
Although the record may be capable of more than one interpretation, the ALJ’s
interpretation of the evidence relevant to his credibility determination was not unreasonable.
“[The court] must uphold the ALJ’s decision where the evidence is susceptible to more than one
rational interpretation.” Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (internal
quotation marks and citation omitted). Because the ALJ’s interpretation was rational and based
on substantial evidence in the record, the ALJ properly considered Plaintiff’s failure to comply
with prescribed medication when discrediting her statements.
C. Objective Medical Evidence
The ALJ discounted Plaintiff’s credibility because the medical record does not support
her allegations of disabling limitations. Tr. 27. The ALJ correctly noted that there is little or no
objective medical evidence to support Plaintiff’s pain allegations. Id. Dr. Axtell noted in a July
17, 2007 report that there is “no visible structural pathology to explain her pain” and on October
10, 2007 stated that the “etiology for [her] pain is unclear” despite “extensive work-up, including
CT and MRI, with no visible structural pathology.” Tr. 448, 456. Dr. Tara Eagle, M.D., noted
on November 11, 2007 that she doubted whether Plaintiff would be “helped by simply increasing
her narcotics” because of “the lack of objective data [that treating physicians] have on this pain.”
Tr. 436. Dr. Paul Tseng, M.D., indicated in May 30, 2008 exam notes that Plaintiff’s pain was

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“not likely related to her surgery from 2006.” Tr. 558. The ALJ correctly noted that Plaintiff’s
pap tests, CT scans, and MRIs have all been normal. Tr. 27. Dr. Axtell’s records on July 17,
2007 and October 10, 2007 state that Plaintiff’s CT scans and MRIs have been normal since
Plaintiff’s hysterectomy. Tr. 447, 456. Dr. Robert Stenger, M.D., stated in an April 24, 2008
report that Plaintiff’s pap tests and CT scans were normal and “nothing on examination . . .
suggests that there is a surgically correctable cause to her pelvic pain.” Tr. 416-18.
Plaintiff contends that the ALJ erred in using the medical record to support his adverse
credibility determination. Pl.’s Opening Br. 26. Plaintiff maintains that her testimony of “pain
symptoms, impairments, chronic pain and limitations from chronic pain are consistent with and
supported by the overall medical evidence of record.” Id.; see also Pl.’s Reply Br. 1-2.
“[A]fter a claimant produces objective medical evidence of an underlying impairment, an
ALJ may not reject a claimant’s subjective complaints based solely on a lack of medical
evidence to fully corroborate the alleged severity of pain.” Burch, 400 F.3d at 680. “Although
lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor
that the ALJ can consider in his credibility analysis.” Id. at 681. Generally, noting a conflict
between a claimant's subjective complaints and the objective medical evidence in the record
constitutes a specific and substantial reason for an ALJ to find that claimant not credible. See
Morgan v. Comm’r, 169 F.3d 595, 600 (9th Cir. 1999) (“Citing the conflict between [the
claimant’s] testimony of subjective complaints and the objective medical evidence in the record,
and noting the ALJ’s personal observations, the ALJ provided specific and substantial reasons
that undermined [the claimant’s] credibility.”).
Here, the ALJ did not discredit Plaintiff’s subjective complaints solely on the basis of
objective medical evidence. The ALJ provided additional clear and convincing reasons based on

9 - OPINION & ORDER

substantial evidence in the record, including Plaintiff’s inconsistent statements and her
noncompliance with medication. Therefore, the ALJ properly relied upon objective medical
evidence as a factor in making his adverse credibility determination. See, e.g., Burch, 400 F.3d
at 680-81; see also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective
pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective
medical evidence, the medical evidence is still a relevant factor in determining the severity of the
claimant's pain and its disabling effects.”) (citing 20 C.F.R. § 404.1529(c)(2)).
The ALJ provided clear and convincing reasons in support of his adverse credibility
determination and did not err in rejecting Plaintiff’s subjective testimony regarding her pain and
limitations.
II. Lay Witness Testimony
Plaintiff asserts that the ALJ improperly rejected lay witness testimony provided by her
daughter, Linda Fero; her friend, Joyce Kenifick; and her pastor, Reverend Carren Woods. Pl.’s
Opening Br. 27-28.
Lay testimony regarding a claimant’s symptoms is competent evidence which the ALJ
must take into account. Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006); 20 C.F.R. §§
404.1513(d)(4) & (e), 416.913(d)(4) & (e) (evidence from non-medical sources such as family
members, friends, and neighbors, may be used to show the severity of an impairment and how it
affects the claimant’s ability to work). It is error for an ALJ to completely fail to comment on
lay testimony offered as to symptoms or a claimant’s ability to work. Stout, 454 F.3d at 1053;
Van Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (lay testimony concerning the
claimant’s ability to work “cannot be disregarded without comment”).

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“If an ALJ disregards the testimony of a lay witness, the ALJ must provide reasons that
are germane to each witness [and] . . . the reasons germane to each witness must be specific.”
Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (internal quotation marks omitted); see also
Regennitter v. Comm’r, 166 F.3d 1294, 1298 (9th Cir. 1999) (holding that an ALJ can reject lay
testimony “only by giving specific reasons germane to each witness”). However, in rejecting lay
testimony, the ALJ need not “discuss every witness’s testimony on a [sic] individualized,
witness-by-witness basis. Rather, if the ALJ gives germane reasons for rejecting testimony by
one witness, the ALJ need only point to those reasons when rejecting similar testimony by a
different witness.” Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). The ALJ found the
testimony of all three lay witnesses credible to the extent that their statements were based on
personal observations, but rejected their statements concerning the alleged degree of limitation
because they were unsupported by the objective medical evidence. Tr. 29. The ALJ further
rejected some of Woods’s testimony concerning Plaintiff’s mental health because Woods lacks
the requisite qualifications. Id.
The ALJ correctly rejected Woods’s statements made in a mental health questionnaire
supplied by Plaintiff’s attorney. Woods holds a masters of divinity degree, not a degree in
counseling, psychology, or medicine, and therefore is not qualified to diagnose Plaintiff’s
impairments. Tr. 721-28 (June 21, 2011 Mental Impairment Questionnaire in which Woods
states that she is “not qualified to diagnose [Plaintiff’s] present condition); compare 20 C.F.R. §
404.1513(a)(1)-(5) (stating that “acceptable medical sources” who can provide evidence to
establish “medically determinable impairment(s)” include licensed doctors and certain other
qualified specialists), with 20 C.F.R. § 404.1513(d)(4) (indicating that clergy qualify as a “nonmedical source” who may provide testimony “to show the severity of [claimant’s] impairment(s)

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and how it affects [claimant’s] ability to work”). Lacking the requisite qualifications to offer a
professional assessment of Plaintiff’s functions is a reason germane to the witness.
District courts in the Ninth Circuit have noted conflicting Ninth Circuit decisions
regarding whether lay testimony can be properly rejected because it is unsupported or
uncorroborated by objective medical evidence. Glover v. Astrue, 835 F. Supp. 2d 1003, 1008-09
(D. Or. 2011) (recognizing one line of cases holding that an ALJ may properly reject lay
testimony that is inconsistent with or conflicts with the objective medical evidence and another
line of cases holding that an ALJ may not properly reject lay testimony because the objective
medical evidence does not support or corroborate such testimony) (citing Lewis v. Apfel, 236
F.3d 503, 511 (9th Cir. 2001) (“One reason for which an ALJ may discount lay testimony is that
it conflicts with medical evidence”); Bruce, 557 F.3d at 1116 (holding that an ALJ cannot
discredit lay testimony “as not supported by medical evidence in the record”)). Some district
courts have reconciled the apparently competing cases by concluding that an ALJ may properly
reject lay testimony that conflicts with or is inconsistent with the objective medical evidence, but
not when it is unsupported or uncorroborated by such evidence. E.g., Rivera v. Colvin, No.
6:12-CV-02132-MO, 2013 WL 6002445, at *3 (D. Or. Nov. 12, 2013).
When presented with this issue in Glover, I concluded that an ALJ may reject lay witness
testimony when it is inconsistent with or conflicts with the objective medical evidence and when
it is unsupported or uncorroborated by the objective medical evidence. Glover, 835 F. Supp. 2d
at 1012. However, I explained that:
The sufficiency of the ALJ’s rejection of lay witness testimony, regardless of
whether the rejection is because the testimony is not supported or corroborated by
the objective medical evidence or is because the testimony is inconsistent or
conflicts with the objective medical evidence, will depend on the particular case
and the thoroughness with which the ALJ conducts and discusses his or her
evaluation of the evidence.
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Id. at 1013.
The ALJ found the testimony of Fero, Kenifick, and Woods credible to the extent that it
was based on personal observations, but noted that treatment records and other objective
evidence “do not support the alleged degree of limitation.” Tr. 29. While, in my opinion, an
ALJ may reject lay testimony based on lack of support by the objective medical record, there still
must be sufficient discussion of that issue. See Glover, 835 F. Supp. 2d at 1012-13 (“But, this
discussion must occur within the parameters otherwise applicable to the evaluation of evidence
generally and to the evaluation of lay witness testimony in particular.”). In Glover, as an
example of an insufficient, conclusory “discussion,” I cited a Western District of Washington
case which found that an “ALJ’s general reference” to the lay testimony as not consistent with
“the bulk of the medical evidence of record” was “too vague to constitute even a germane reason
for discounting the statements and comments” of a lay witness. Id. at 1013 (citing and quoting
Edwards v. Astrue, No. C08-5730BHS, 2009 WL 2855730, at *11 (W.D. Wash. Aug. 31, 2009)
(internal quotation marks omitted)). Here, as in Edwards, the reference is too conclusory and
vague to be sufficient.
Defendant contends that the ALJ’s rejection of the lay witness’s testimony is not in error
because the reasons that the ALJ gave for properly discounting Plaintiff’s testimony apply to
similar statements made by the lay witnesses. Def.’s Br. 10. In support, Defendant cites Molina,
where the Ninth Circuit held that “an ALJ’s failure to comment on lay witness testimony is
harmless where the ‘same evidence that the ALJ referred to in discrediting [the claimant’s]
claims also discredits [the lay witness’s] claims.’” Molina, 674 F.3d at 1122 (quoting Buckner v.
Astrue, 646 F.3d 549, 560 (8th Cir. 2011)).

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An ALJ commits harmless error by failing to comment upon lay testimony when: 1) that
testimony “does not describe any limitations not already described by the claimant,” and 2) “the
ALJ’s well-supported reasons for rejecting the claimant’s testimony apply equally well to the lay
testimony.” Id. at 1117 (citing Valentine, 574 F.3d at 694 (holding that an ALJ’s germane
reasons for rejecting a claimant’s testimony are equally germane to similar testimony by lay
witnesses)); Lewis, 236 F.3d at 512 (finding that an ALJ “noted arguably germane reasons for
dismissing [lay] testimony, even if he did not clearly link his determination to those reasons”);
see generally 28 U.S.C.S. § 2111 (codifying the federal harmless error rule for civil cases which
requires courts to review cases “without regard to errors or defects which do not affect the
substantial rights of the parties”).
As noted above, the ALJ found Plaintiff’s pain allegations not credible for three reasons:
1) Plaintiff’s inconsistent statements regarding her sexual history and whether or not she
experienced hallucinations and had suicidal ideations; 2) Plaintiff’s noncompliance with
prescribed Vicodin for pain; and 3) the lack of support for Plaintiff’s alleged limitations in the
objective medical record. The first reason does not apply equally well to the lay witnesses since
the inconsistent statements go to Plaintiff’s credibility for providing truthful information.
However, the second and third reasons go to the substance of the alleged limitations and apply
equally well to some of the lay witness testimony. The ALJ reasoned that Plaintiff was not in as
much pain as she claimed because she failed to take prescribed Vicodin as evidenced by the
negative drug test. Tr. 27. The physical limitations described by the lay witnesses based on
Plaintiff’s alleged incapacitating pain are thus equally discredited. As a result, the ALJ
committed harmless error in rejecting the lay witness testimony regarding Plaintiff’s ability to:
walk, sit, stand, lift, climb stairs, crouch or squat, sleep, grip, and perform household chores.

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E.g., compare Tr. 46 (Plaintiff’s testimony that her leg and hip pain make walking “six steps” to
the bathroom “an exhaustion just to go there”), with Tr. 275 (lay testimony that Plaintiff can
walk five to ten feet without stopping to rest); compare Tr. 71 (Plaintiff’s testimony that in
regards to household chores she can do “[r]eally none anymore”), with Tr. 273 (lay testimony
that Plaintiff is in “too much pain” to perform household chores). Because the testimony of
Fero, Kenifick, and Woods fails to add information regarding Plaintiff’s alleged pain and
limitations beyond what was described by Plaintiff and properly rejected by the ALJ, the ALJ’s
rejection of the lay testimony regarding pain-based limitations is harmless error.
While the ALJ provided sufficient reason to reject lay testimony regarding Plaintiff’s
physical symptoms of pain on the basis that these symptoms were unsupported in the medical
record and Plaintiff failed to comply with pain medication, the ALJ did not provide sufficient
reason to reject lay testimony regarding Plaintiff’s psychologically-based limitations because
Plaintiff’s failure to comply with pain medication undermined the testimony as to physical
limitations, not psychological limitations. The ALJ’s reasons for rejecting Plaintiff’s testimony
do not, therefore, support the rejection of the lay testimony regarding Plaintiff’s psychological
limitations such as panic attacks, crying spells, and anger control issues. E.g., Tr. 80 (lay
testimony that Plaintiff has daily panic attacks); Tr. 88 (lay testimony that Plaintiff experiences
crying spells lasting one to two hours); Tr. 89 (lay testimony that Plaintiff has difficulty
controlling her anger). The ALJ’s rejection of this testimony was not harmless because the ALJ
was required to consider limitations associated with Plaintiff’s mental conditions in making his
disability determination. See 42 U.S.C. § 423(d)(1)(A) (requiring an ALJ to consider whether
the claimant is able to “engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment”). Because the ALJ erred in rejecting the lay

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witness testimony based on the conclusory assertion that the testimony was unsupported by the
objective medical evidence and because the rejection of the lay witness testimony regarding
Plaintiff’s mental-health-based limitations was not harmless error, the ALJ erred in rejecting this
portion of the lay witness testimony. 1
III. Medical Testimony
Plaintiff argues the ALJ erred by improperly evaluating the testimony of Dr. Paul Gowen,
M.D., and Dr. Givi. Pl.’s Opening Br. 23, 29.
Social security law recognizes three types of physicians: 1) treating, 2) examining, and
3) nonexamining. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1996). Generally, more 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. §§ 1527(d)(1)-(2), 416.927(d)(1)-(2).
If the treating physician’s medical opinion is supported by medically acceptable
diagnostic techniques and is not inconsistent with other substantial evidence in the record, the
treating physician’s opinion is given controlling weight. Orn v. Astrue, 495 F.3d 625, 631 (9th
Cir. 2007); Holohan, 246 F.3d at 1202. If a treating physician’s opinion is not given “controlling
weight” because it is not “well-supported” or because it is inconsistent with other substantial
evidence in the record, the ALJ must still articulate the relevant weight to be given to the opinion
under the factors provided for in 20 C.F.R. §§ 1527(d)(2), 416.927(d)(2). Orn, 495 F.3d at 631.
If the treating physician’s opinion is not contradicted by another doctor, the ALJ may
reject it only for “clear and convincing” reasons. Id. at 632. Even if the treating physician’s
opinion is contradicted by another doctor, the ALJ may not reject the treating physician’s
1

However, as explained above, the ALJ properly rejected the portion of Woods’s testimony
provided on the questionnaire. Any other lay testimony by Woods regarding Plaintiff’s mental
health limitations was erroneously rejected.
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opinion without providing “specific and legitimate reasons” which are supported by substantial
evidence in the record. Id.
A. Dr. Gowen
On July 6, 2011, Dr. Gowen stated in an attorney-supplied questionnaire that Plaintiff has
diagnoses of lower extremity weakness and pain syndrome. Tr. 731-38 (Medical Opinion Re:
Ability to Do Work-Related Activities (Physical) Questionnaire). Dr. Gowen indicated, by
checking a box, that Plaintiff has a “poor” ability to work an eight-hour workday for forty hours
a week, but also indicated that Plaintiff was “capable of low stress jobs.” Tr. 733, 734.
Regarding functional limitations during an eight-hour workday, Dr. Gowen indicated that
Plaintiff could stand or walk for two hours, sit for three hours, lift less than ten pounds
occasionally, and could not crouch or stoop. Tr. 735-36.
The ALJ gave “little weight” to Dr. Gowen’s opinion for three reasons: 1) the evidence of
record contained no treatment notes from Dr. Gowen; 2) his assessment was inconsistent with
treatment notes from other providers, and 3) his assessment was inconsistent with the objective
medical evidence. Tr. 28. Plaintiff argues that the ALJ erred by not according Dr. Gowen’s
opinions greater weight since “[i]t is clear that Dr. Gowen is one several treating doctors at
NARA from the record.” Pl.’s Reply Br.10 (citing Tr. 687-719). Defendant counters that the
ALJ properly discounted the opinion of Dr. Gowen because “nothing in the record, including the
pages Plaintiff cites, shows that Dr. Gowen ever examined or treated Plaintiff.” Def.’s Br. 11
(citing Tr. 687-71).
I agree with Defendant that the ALJ properly evaluated Dr. Gowen’s testimony in light of
Dr. Gowen’s status as neither a treating nor an examining physician. The records cited by
Plaintiff contain no mention of Dr. Gowen other than a July 30, 2010 patient profile from NARA

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indicating that he was Plaintiff’s primary physician. Tr. 700. However, another profile from
August 30, 2010 identifies Dr. Earhart as Plaintiff’s primary physician. Tr. 686. The only place
in the record where Dr. Gowen’s opinion appears is in the attorney-supplied questionnaire. Tr.
731-38.
“[A]n ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and
inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005); see generally Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (a physician’s
opinion “with respect to the existence of an impairment or the ultimate determination of
disability” is not binding on an ALJ). Consequently, “[o]pinions on a check-box form or form
reports which do not contain significant explanation of the basis for the conclusions . . . may be
accorded little or no weight.” See, e.g., Weltch v. Astrue, No. CV-10-154-HZ, 2011 WL
1135930, at *3 (D. Or. Mar. 28, 2011).
Here, Dr. Gowen’s statements on the attorney-supplied questionnaire regarding
Plaintiff’s diagnosis of pain syndrome and degree of limitation were brief, conclusory, and
inadequately supported by the clinical findings. Dr. Margaret Moore, Ph.D., a medical expert,
reviewed the evidence and determined that Plaintiff has a diagnosis of major depressive disorder
and amphetamine dependence in remission, but stated there is “no formal recognition that
[Plaintiff’s condition] is a pain disorder.” Tr. 102-03. Dr. Richard Alley, M.D., a state agency
physician, opined that in an eight-hour workday Plaintiff could stand or walk for six hours, sit for
six hours, lift up to twenty pounds occasionally and ten pounds frequently, and has no crouching
or stooping limitations. Tr. 601-02. Because Dr. Gowen’s opinions are unsubstantiated by the
clinical findings and the record fails to provide sufficient evidence that Dr. Gowen was
Plaintiff’s treating or examining physician, the ALJ provided specific and legitimate reasons for

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discounting Dr. Gowen’s opinions. See generally Sanders v. Colvin, No. 3:12-CV-01059-HZ,
2013 WL 5376510, at *6 (D. Or. Sept. 24, 2013) (citing SSR 06–03p, 2006 WL 2329939, at *3
(Aug. 9, 2006) (listing factors that an ALJ may use to evaluate the opinions of medical sources
including: the longitudinal treating history of the physician, the consistency of the opinion with
other evidence, whether the record as a whole supports the opinion, and whether the opinion is
thoroughly explained)).
B. Dr. Givi
On March 25, 2008, Plaintiff visited Dr. Givi, an examining clinical psychologist, for a
comprehensive psychodiagnostic evaluation. Tr. 531-37. Dr. Givi diagnosed Plaintiff with
major depressive disorder and amphetamine dependence in remission. Tr. 537. Regarding
psychological barriers to employment, Dr Givi found that Plaintiff has depression, anxiety, and
hygiene problems. Id. Dr. Givi also noted that Plaintiff’s memory and concentration is “below
normal limits.” Tr. 535. Dr. Givi found that Plaintiff “appears to be semi-independent” in
activities of daily living and gave Plaintiff a Global Assessment of Functioning (“GAF”) score of
58. Tr. 537.
The ALJ gave Dr. Givi’s opinion “controlling weight” because it was consistent with
other evidence. Tr. 28. The ALJ noted that Dr. Givi diagnosed Plaintiff with depressive disorder
and amphetamine dependence in remission. Tr. 27 (citing Tr. 102-03 (showing consistency with
Dr. Moore’s testimony that Plaintiff has no diagnosis for a pain disorder)). Also, the ALJ noted
that the GAF score of 58 indicated “moderate symptoms or moderate impairment.” Tr. 27-28
(citing Tr. 607 (showing consistency with the testimony of state agency physician Dr. Alley, who
completed a RFC form stating that Plaintiff is able to preform light work)); see generally
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 34 (4th ed., text rev. 2000)

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(defining GAF scores in the range of 51 to 60 as “[m]oderate symptoms” such as occasional
panic attacks or “moderate difficulty” in social or occupational functioning). Based on Dr.
Givi’s findings, the ALJ determined that Plaintiff’s depressive disorder is a severe impairment
and that Plaintiff does not have a listed impairment. Tr. 23, 24.
Plaintiff argues that the ALJ erred by failing to include limitations described by Dr. Givi
in his assessment of Plaintiff’s RFC despite giving Dr. Givi’s reports “significant weight.” Pl.’s
Opening Br. 29. Defendant counters that the ALJ appropriately “translated” Dr. Givi’s
assessment of Plaintiff’s limitations in his determination that “Plaintiff was capable of simple,
entry level work with occasional public interaction.” Def.’s Br. 13 (citing Tr. 25, 27-28). In
support, Defendant cites Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008), where the
Ninth Circuit held that the ALJ properly “translated [claimant’s] condition, including pace and
mental limitations” into “simple tasks.” Def.’s Br. 13 (citing Stubbs-Danielson, 539 F.3d at
1174).
“It is clear that it is the responsibility of the ALJ, not the claimant’s physician, to
determine residual functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001)
(citing 20 C.F.R. § 416.946 (codifying the ALJ’s responsibility to assess a claimant’s RFC)). “In
assessing the RFC, the ALJ must consider limitations imposed by all of a claimant’s
impairments, even those that are not severe; the ALJ must also evaluate ‘all of the relevant
medical and other evidence.’” Catt v. Colvin, No. 3:12-CV-02087-HZ, 2014 WL 98720, at *10
(D. Or. Jan. 8, 2014) (quoting 20 C.F.R. § 404.1545(a)(3); citing SSR 96-8p, 1996 WL 374184,
at *5 (July 2, 1996)). “When an ALJ rationally interprets the available evidence in forming his
or her opinion, the court will defer to the ALJ's conclusion.” Warn v. Colvin, No. 2:11-CV-2045
KJN, 2013 WL 943411, at *4 (E.D. Cal. Mar. 11, 2013) (citing Batson v. Comm’r, 359 F.3d

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1190, 1198 (9th Cir. 2004) (“When the evidence before the ALJ is subject to more than one
rational interpretation, we must defer to the ALJ's conclusion.”)).
I agree with Defendant that the ALJ rationally interpreted the evidence provided by Dr.
Givi in forming his opinion of Plaintiff’s RFC. The ALJ’s determination that Plaintiff is capable
of “simple, entry level work” is a reasonable work-related functional equivalent to Dr. Givi’s
opinion that Plaintiff has some physiological barriers to employment, has below normal memory
and concentration, functions semi-independently, and has a GAF score of 58. Accordingly, I
find that the ALJ did not err in his evaluation of Dr. Givi’s testimony.
IV. Activities of Daily Living
Plaintiff argues the ALJ erred by “not discussing how Plaintiff’s ADLs are evidence of
[her] inability to perform full-time work.” Pl.’s Opening Br. 28. I reject the argument for two
reasons. First, as Defendant notes, the ALJ did not discount Plaintiff’s credibility, lay witness
statements, or medical testimony on this basis.

Second, the argument is better viewed as

contending that the ALJ’s hypothetical was invalid for failure to contain all of Plaintiff’s
limitations, an argument she separately makes.

Thus, the ADL argument requires no

independent discussion.
V. Hypothetical to Vocational Expert
Plaintiff contends the RFC formulated by the ALJ, and, by extension, the hypothetical
questions he posed to the VE were invalid because they did not address all of the limitations
described by Plaintiff, the lay witnesses, and Dr. Gowen. Pl.’s Opening Br. 31-32. Defendant
responds that the RFC and hypothetical questions properly account for all of Plaintiff’s
limitations supported by the record. Def.’s Br. 14-15 (citing Stubbs- Danielson, 539 F.3d at

21 - OPINION & ORDER

1175-76 (rejecting a claimant’s argument that a hypothetical was incomplete when the claimant
simply restated her arguments against the RFC findings)).
“The hypothetical an ALJ poses to a vocational expert, which derives [sic] from the RFC,
‘must set out all the limitations and restrictions of the particular claimant.’” Valentine, 574 F.3d
at 690 (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)); see generally Thomas v.
Barnhart, 278 F.3d 947, 956 (9th Cir. 2002) (specifying that hypothetical questions must include
all of the claimant’s functional limitations, including physical and mental limitations). However,
“[a]n ALJ is free to accept or reject restrictions in a hypothetical question that are not supported
by substantial evidence.” Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001). But “[i]f
a hypothetical fails to reflect each of the claimant’s limitations supported by ‘substantial
evidence,’ the expert’s answer has no evidentiary value.” Id. at 1167.
Here, the ALJ failed to adequately reflect all of Plaintiff’s limitations in the hypotheticals
presented to the VE. Because the ALJ erroneously rejected lay testimony regarding Plaintiff’s
alleged psychological impairments, he failed to include the limitations from these impairments in
the VE hypotheticals. See supra Part II (discussing the ALJ’s failure to provide legally sufficient
reasons to discredit lay witness testimony concerning Plaintiff’s mental health impairments); Tr.
106-07 (showing that none of the hypothetical questions posed by the ALJ addressed
psychological limitations described by the lay witnesses, other than a hypothetical restricting
Plaintiff’s RFC to “occasional contact with the public”). Consequently, the VE’s testimony has
no evidentiary value, and the ALJ’s disability determination cannot be sustained.
The decision whether to remand a matter for further proceedings or for an immediate
payment of benefits is within the court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1178 (9th
Cir. 2000). “[A] remand for further proceedings is unnecessary if the record is fully developed

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and it is clear from the record that the ALJ would be required to award benefits.” E.g., Holohan,
246 F.3d at 1210. Generally, when reversing an ALJ’s decision “the proper course, except in
rare circumstances, is to remand to the agency for additional investigation or explanation.”
Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (internal quotation marks and citation
omitted). The decision turns on the utility of further proceedings. Alcock v. Comm’r, No. 1:10CV-6206-MA, 2011 WL 5825922, at *8 (D. Or. Nov. 16, 2011). The Ninth Circuit has
established a three-part test “for determining when evidence should be credited and an
immediate award of benefits directed.” Harman, 211 F.3d at 1178. The court should grant an
immediate award when: 1) the ALJ has failed to provide legally sufficient reasons for rejecting
such evidence; 2) there are no outstanding issues that must be resolved before a determination of
disability can be made; and 3) it is clear from the record that the ALJ would be required to find
the claimant disabled were such evidence credited. Id.
Here, there are outstanding issues concerning the credibility of lay witness testimony
regarding mental health limitations that must be resolved before a determination can be made
that an award is inappropriate. In this case, the ALJ must: 1) perform a complete credibility
analysis of lay witness testimony and, if necessary, provide germane and specific reasons for
discrediting testimony or, under Glover, provide sufficient discussion to reject testimony
unsupported by the medical evidence; and 2) if necessary, reassess Plaintiff’s RFC and propose
appropriate hypotheticals to the VE that include all of Plaintiff’s limitations. Given that these
issues remain, I reverse the ALJ’s decision, and remand the case for further proceedings
consistent with this opinion.
///
///

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CONCLUSION
The Commissioner’s decision is reversed and remanded for additional proceedings.
IT IS SO ORDERED.

Dated this

day of ________________, 2014

MARCO A. HERNANDEZ
United States District Judge

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