Alertas v. Social Security Administration

Filing 30

Opinion and Order - The Commissioner's decision that Ms. Alertas is not disabled is AFFIRMED as to Ms. Alertas's application for Disability Insurance Benefits, and REVERSED and remanded for an award of benefits as of April 18, 2012 as to Ms. Alertas's application for Supplemental Security Income benefits. Signed on 6/13/2014 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KATHIE J. ALERTAS,
Plaintiff,

Case No. 3:13-cv-00717-SI
OPINION AND ORDER

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
Karen Stolzberg, 11830 SW Kerr Parkway, #315, Lake Oswego, OR 97035. Of Attorney for
Plaintiff.
S. Amanda Marshall, United States Attorney, and Ronald K. Silver, Assistant United States
Attorney, United States Attorney’s Office, District of Oregon, 1000 S.W. Third Avenue, Suite
600, Portland, OR 97204-2902; Nancy A. Mishalanie, Special Assistant United States Attorney,
Office of the General Counsel, Social Security Administration, 701 Fifth Avenue, Suit 2900 M/S
221A, Seattle, WA 98104-7075. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Ms. Kathie J. Alertas (“Ms. Alertas”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying Ms. Alertas’s
application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)
under Title II and Title XVI of the Social Security Act. For the following reasons, the
Commissioner’s decision is AFFIRMED with respect to Ms. Alertas’s application for DIB and

PAGE 1 – OPINION AND ORDER

REVERSED and remanded for an award of benefits as of April 18, 2012 with respect to
Ms. Alertas’s application for SSI.
STANDARDS
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679
(9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190,
1193 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882
(9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray,
554 F.3d at 1226.

PAGE 2 – OPINION AND ORDER

BACKGROUND
A. Ms. Alertas’s Application
Ms. Alertas protectively filed an application for DIB on October 22, 2007. AR 275-284.
She initially alleged disability beginning on December 31, 2000, but later amended that date to
March 1, 2002. AR 98, 277. Ms. Alertas was born April 18, 1957; she was 50 years old at the
time of her application and 43 years old at the time of the original claimed onset date. AR 277.
She alleged disability due to right eye blindness caused by a brain tumor, anxiety and panic,
visual disorder, dizziness, herniated discs in her neck and back causing pain and urinary and
bowel incontinence, spondylitis and swayback, exertional asthma, anorexia, confusion, memory
loss, sleep problems, seizures, nerve damage, arthritis, and kidney infection. AR 334, 365, 382.
Ms. Alertas’s application for DIB was denied initially on March 6, 2008. AR 151-54. She
then protectively filed an application for SSI on June 20, 2008. AR 285-88. Both claims were
denied upon reconsideration on August 21, 2008, after which Ms. Alertas requested a hearing
before an Administrative Law Judge (“ALJ”). AR 160-64, 166. Hearings were held before
ALJ Dan R. Hyatt (“ALJ Hyatt”) on February 9, 2010, and July 13, 2010. AR 69-94, 95-106. On
July 26, 2010, ALJ Hyatt issued a decision denying Ms. Alertas’s claims and finding her not
disabled. AR 118-35.
Ms. Alertas filed a request for review of ALJ Hyatt’s decision by the Appeals Council,
and on June 20, 2011 the Appeals Council remanded Ms. Alertas’s case to a new ALJ to further
develop evidence related to Ms. Alertas’s alleged disability and to give further consideration to
her symptom testimony and residual functional capacity. AR 138. Upon remand, a hearing was
held before ALJ Richard A. Say (“the ALJ”) on December 6, 2011. AR 40-68. The ALJ issued a
decision on December 23, 2011, denying Ms. Alertas’s claims and finding her not disabled.
AR 19-39. On April 18, 2012, Ms. Alertas turned 55 years old. Ms. Alertas filed a request for
PAGE 3 – OPINION AND ORDER

review of the ALJ’s decision by the Appeals Council, and that request was denied on
March 12, 2013. AR 1-6, 17-18. Ms. Alertas seeks judicial review of the ALJ’s decision.
B. The Sequential Analysis
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1.

2.

3.

Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the

PAGE 4 – OPINION AND ORDER

4.

5.

claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
The ALJ first noted that Ms. Alertas met the insured requirements for DIB through
June 30, 2007 and that in order to be entitled to DIB she must establish that she was disabled on
PAGE 5 – OPINION AND ORDER

or before that date. AR 22. The ALJ then engaged in the sequential analysis required by
regulation. AR 24-33. At step one, the ALJ determined that Ms. Alertas had not engaged in
substantial gainful activity after the alleged onset date. AR 24. At step two, the ALJ concluded
that Ms. Alertas had severe impairments related to anxiety, depression, right optic nerve
meningioma, and degenerative disc disease of the lumbar and cervical spine. AR 25.
At step three, the ALJ first found that Ms. Alertas did not have an impairment or
combination of impairments that met or medically equaled the severity of a listed impairment in
20 C.F.R. Pt. 404, Subpt. P, App. 1. AR 26. The ALJ then found that Ms. Alertas’s mental
impairments did not meet or medically equal the regulatory listings, and that Ms. Alertas had
“mild” restrictions in her activities of daily living. Id. The ALJ determined that Ms. Alertas’s
RFC includes the ability to perform light work, limited to unskilled work and routine tasks, and
that she can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, but
should never climb ladders, ropes or scaffolds. AR 27. The RFC also includes that Ms. Alertas
has limited depth perception, should avoid concentrated exposure to hazards, and should have no
interaction with the public. Id.
In determining Ms. Alertas’s RFC, the ALJ found that the evidence established that
Ms. Alertas’s medically determinable impairments could reasonably be expected to cause some
of her alleged symptoms, but that her symptom testimony is not fully credible. AR 28. The ALJ
considered evidence that Ms. Alertas has no physically determinable causes for the severe pain
and balance problems she alleges, that she had a history of overusing her medications, that some
of her symptoms appear to be adequately controlled by treatment, and that neuropsychological
testing showed that Ms. Alertas tends to overstate her symptoms. AR 28-29. The ALJ also

PAGE 6 – OPINION AND ORDER

considered written testimony from Ms. Alertas’s brother-in-law regarding her activities of daily
living, and the record evidence of many treating and examining physicians. AR 29-30.
At step four, the ALJ determined that Ms. Alertas cannot perform any of her past relevant
work. At step five, taking into account Ms. Alertas’s age, high school education, work
experience, RFC, and the testimony of a Vocational Expert (“VE”), the ALJ found that
Ms. Alertas is capable of performing jobs that exist in significant numbers in the national
economy and is therefore not disabled. AR 32.
DISCUSSION
Ms. Alertas argues that the ALJ erred by: (1) not including an alleged pain disorder and
headaches as severe impairments at step two of the sequential analysis; (2) improperly rejecting
part of the testimony of a treating physician; (3) improperly rejecting part of Ms. Alertas’s
symptom testimony for lack of credibility; (4) improperly rejecting the testimony of a lay
witness; (5) failing to include necessary limitations in Ms. Alertas’s RFC; and (6) failing to
consider Ms. Alertas a “person of advanced age.” Each argument will be addressed in turn.
A. Determination of Severe Impairment at Step Two
Ms. Alertas argues that the ALJ erred by failing to find that her alleged pain disorder and
headaches are severe impairments at step two of the sequential analysis. The ALJ concluded that
Ms. Alertas’s severe impairments at step two include “anxiety, depression, right optic nerve
meningioma, and degenerative disc disease of the lumbar and cervical spine.” AR 25.
The step two inquiry is a de minimis screening device to dispose of groundless claims.
Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987). The claimant bears the burden of establishing
that she has a severe impairment at step two by providing medical evidence. 20 C.F.R
§§ 404.1512, 416.912. An impairment or combination of impairments is not severe “only if the
evidence establishes a slight abnormality that has no more than a minimal effect on an
PAGE 7 – OPINION AND ORDER

individual’s ability to work.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (emphasis in
original). The ALJ is required to consider the combined effect of all of the claimant’s
impairments on his or her ability to function. Howard ex rel. Wolff v.Barnhart, 341 F.3d 1006,
1012 (9th Cir. 2003). If the ALJ determines that a claimant is severely impaired at step two, the
ALJ continues with the sequential analysis, considering all of the claimant’s limitations, whether
or not they are severe. Social Security Ruling (“SSR”) 96–9p, available at 1996 WL 374184,
at *5.
Ms. Alertas was diagnosed with a “chronic pain syndrome” by Dr. John Oppenheimer on
January 8, 2008. AR 733, 741, 748. She was provisionally diagnosed with a “Pain Disorder,
Associated with Both Psychological Factors and a General Medical Condition” by
Dr. James Bryan on March 12, 2010. AR 848. The ALJ discounted this diagnosis at step two
because of a lack of “longitudinal history of diagnosis or treatment,” but considered its combined
effect with Ms. Alertas’s other impairments later in the sequential analysis. AR 26. Ms. Alertas
also complained of chronic headaches that the ALJ did not find severe at step two because
Ms. Alertas’s testimony in 2010 and 2011 was “slightly inconsistent” as to the symptoms of
those headaches, and medical records indicate that her headaches were stable and controlled with
medication. AR 25.
The ALJ’s decision not to include these two alleged impairments as severe impairments
at step two is supported by substantial evidence in the record. Although Dr. Oppenheimer
diagnosed Ms. Alertas with a “chronic pain syndrome” before Dr. Bryan’s diagnosis, it is not
clear from the record that the two diagnoses are the same; Dr. Oppenheimer’s diagnosis does not
suggest a somatic symptom disorder. Additionally, during the discussion of Ms. Alertas’s
credibility, the ALJ cited to evidence in the record showing that Ms. Alertas’s pain is

PAGE 8 – OPINION AND ORDER

significantly controlled by medication, that Ms. Alertas has a history of overusing her pain
medications, and that she overstates the severity of her symptoms. AR 28-29; see infra Part C.
The ALJ also found Ms. Alertas’s claims of disabling headaches to be an overstatement of her
symptoms. AR 27-29; see infra Part C. Although the ALJ included some degree of severe pain
from Ms. Alertas’s back and neck problems, his decision not to credit the full severity alleged by
Ms. Alertas at step two was not made in error.
Even if the ALJ erred by failing to conclude that Ms. Alertas’s alleged pain disorder and
headaches are severe, that error was harmless. Step two of the sequential analysis is “merely a
threshold determination of whether the claimant is able to perform his past work.” Hoopai,
499 F.3d at 1076. If an ALJ fails to consider limitations imposed by an impairment at step two
but considers them in determining the claimant’s RFC, the error is harmless. See Lewis v. Astrue,
498 F.3d 909, 911 (9th Cir. 2007). In this case, the ALJ resolved step two in Ms. Alertas’s favor,
finding that she had severe impairments that warranted moving on to step three. AR 25-26. In
determining Ms. Alertas’s RFC at step three the ALJ gave further consideration to Ms. Alertas’s
allegations of severe pain and headaches, ultimately discounting their severity pursuant to his
determination of Ms. Alertas’s credibility.
B. Weight of Opinion Evidence
Ms. Alertas argues that the ALJ erred by failing to give appropriate weight to the
opinions of Dr. Ginevra Liptan, a treating physician. Ms. Alertas contends that the ALJ
improperly rejected Dr. Liptan’s opinions that Ms. Alertas’s mental conditions “exacerbated her
experience of pain” and that she has cognitive deficits attributable to radiation treatments and
past alcohol abuse. Ms. Alertas argues that, in light of Dr. Bryan’s testing, the ALJ should have
asked Dr. Liptan to clarify her opinions.

PAGE 9 – OPINION AND ORDER

If a treating physician’s medical opinion is not inconsistent with other substantial
evidence in the record, and is supported by medically acceptable clinical findings, that opinion is
given controlling weight. Holohan v. Massanari, 246 F.3d 1195, 1202; 20 C.F.R.
§ 404.1527(d)(2). An ALJ may reject a treating physician’s uncontradicted medical opinion only
for “clear and convincing” reasons supported by substantial evidence in the record. Holohan,
246 F.3d at 1202 (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). If an ALJ does
not give a treating physician’s opinion controlling weight because it is not “well supported” or is
inconsistent with other substantial evidence, the ALJ must consider specified factors in
determining the weight it will be given, including length of the treatment relationship, frequency
of examination, the nature and extent of the treatment relationship, evidence given to support the
opinion, consistency with the record, and the physician’s area of specialization. Orn v. Astrue,
495 F.3d 625, 631 (9th Cir. 2007); 20 C.F.R. § 404.1527.
Here, the ALJ discussed Dr. Liptan’s medical source statement of January 29, 2010, and
the opinions offered therein regarding Ms. Alertas’s physical and mental impairments and
limitations. Dr. Liptan offered opinions that Ms. Alertas needs to alternate postures every 30
minutes, can stand or walk for only four of eight hours in a working day, needs to take multiple
unscheduled breaks per day, can lift only up to 10 pounds at a time and five pounds frequently,
has no limitations in balancing, climbing or stooping, and is restricted in her ability to reach and
sustain effort with her hands. AR 827-31. Dr. Liptan also opined that Ms. Alertas has “fair”
ability to travel alone in familiar places, use public transportation, maintain regular attendance,
sustain ordinary routine, work in coordination with others without being distracted, ask simple
questions, accept instructions and criticism from supervisors, make simple work-related
decisions, and respond to changes in routine. AR 832-33. Furthermore, Dr. Liptan opined that

PAGE 10 – OPINION AND ORDER

Ms. Alertas has “poor” ability to remember procedures; understand, remember, and carry out
short and simple instructions; maintain attention for extended periods; complete a normal
workday or workweek without psychologically based interruptions; and be aware of normal
hazards and take precautions. Id. Dr. Liptan attributed these mental limitations to
“cognitive/memory deficits” as well as anxiety and “PTSD” and determined that Ms. Alertas has
“mild” restriction of activities of daily living, “mild” difficulties maintaining social functioning,
and “extreme” difficulties maintaining concentration, persistence, or pace. Id.
The ALJ determined that Dr. Liptan’s opinions were due “little weight.” AR 31. The ALJ
determined that Dr. Liptan did not report objective findings to support her opinions, that there
was no indication that Dr. Liptan had fully physically examined Ms. Alertas or formally
evaluated her physical capacities, and that Dr. Liptan’s opinions were inconsistent with other
evidence of physical examinations that revealed minimal findings. Id. In his discussion of
Dr. Liptan’s opinions regarding Ms. Alertas’s mental limitations, the ALJ noted that Dr. Liptan
was Ms. Alertas’s “pain management specialist,” that Ms. Alertas’s mental impairments are
outside Dr. Liptan’s area of expertise, and that Dr. Liptan’s opinions are contradicted by
Dr. Bryan’s neuropsychological examination and Ms. Alertas’s work as a cashier in 2009. Id.
Dr. Liptan’s medical source statement was completed several months after the last time
she saw Ms. Alertas, as indicated in the record, and is accompanied by no other records,
findings, or explanations. It appears from other evidence in the record that Dr. Liptan saw
Ms. Alertas only four times, over the course of approximately nine months in 2009. AR 788-95.
Dr. Liptan saw Ms. Alertas as part of her treatment at the Legacy Pain Management Center, and
the majority of Dr. Liptan’s notes regarding her treatment of Ms. Alertas relate to pain and pain
medications. Dr. Liptan’s “physical examination” notes from her treatment of Ms. Alertas are

PAGE 11 – OPINION AND ORDER

limited to brief statements giving Ms. Alertas’s blood pressure, heart rate, and temperature;
noting that she was “alert,” “oriented,” “in no apparent distress,” and “nonsedated”; and that
Ms. Alertas was “nonanxious appearing,” and “moving all extremities.” The more extensive
notes of Dr. Ellison in 2008 and Dr. Oppenheimer in 2007 and 2008 reveal little in terms of the
physical limitations contemplated by Dr. Liptan. AR 733-50, 778-81. The ALJ gave clear and
convincing reasons for giving Dr. Liptan’s opinion little weight and properly considered the
factors required by 20 C.F.R. § 404.1527. The ALJ’s decision regarding Dr. Liptan’s opinions is
supported by substantial evidence.
C. Plaintiff’s Credibility
Ms. Alertas argues that the ALJ erred by finding that the credibility of Ms. Alertas’s
testimony was diminished based on invalid scores on neuropsychological tests conducted by
Dr. Bryan, due to drug overuse and dependency, and due to questionable motivation to work.
Although the ALJ gave additional reasons for discounting Ms. Alertas’s credibility, including
that her testimony was contradicted by medical evidence, activities of daily living, and lack of
ongoing treatment, and that her pain was adequately controlled by medication, Ms. Alertas
challenges the ALJ’s credibility determinations with respect only to test scores, drug overuse and
dependency, and motivation to work. The unchallenged reasons alone would suffice, see
Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1997 (9th Cir. 2004), but even if they
would not, the ALJ gave sufficient reasons for discounting Ms. Alertas’s credibility. The ALJ’s
credibility decision may be upheld overall even if not all of the ALJ’s reasons for rejecting the
claimant’s testimony are upheld. Id.
There is a two-step process for evaluating the credibility of a claimant’s own testimony
about the severity and limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572
F.3d 586, 591 (9th Cir. 2009). First, the ALJ “must determine whether the claimant has presented
PAGE 12 – OPINION AND ORDER

objective medical evidence of an underlying impairment ‘which could reasonably be expected to
produce the pain or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036
(9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When
doing so, the claimant “need not show that her impairment could reasonably be expected to cause
the severity of the symptom she has alleged; she need only show that it could reasonably have
caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
Second, “if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
The ALJ may consider objective medical evidence and the claimant’s treatment history,
as well as the claimant’s daily activities, work record, and observations of physicians and third
parties with personal knowledge of the claimant’s functional limitations. Smolen, 80 F.3d
at 1284. The Commissioner recommends assessing the claimant’s daily activities; the location,
duration, frequency, and intensity of the individual’s pain or other symptoms; factors that
precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other
than medication, the individual receives or has received for relief of pain or other symptoms; and

PAGE 13 – OPINION AND ORDER

any measures other than treatment the individual uses or has used to relieve pain or other
symptoms. See SSR 96-7p, available at 1996 WL 374186. The ALJ may not, however, make a
negative credibility finding “solely because” the claimant’s symptom testimony “is not
substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin.,
466 F.3d 880, 883 (9th Cir. 2006).
Further, the Ninth Circuit has said that an ALJ also “may consider . . . ordinary
techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent
statements concerning the symptoms, . . . other testimony by the claimant that appears less than
candid [and] unexplained or inadequately explained failure to seek treatment or to follow a
prescribed course of treatment.” Smolen, 80 F.3d at 1284.
At the first step of the credibility analysis the ALJ determined that Ms. Alertas’s
“medically determinable impairments could reasonably be expected to cause some of the alleged
symptoms.” AR 28. As part of the second step the ALJ then rejected Ms. Alertas’s testimony as
to the degree and severity of those symptoms for “specific, clear and convincing reasons.”
Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281). The ALJ found the evidence
showed that Ms. Alertas’s history of treatment and functional limitations does not support her
allegations of disabling pain and limitations. AR 28.
In discounting Ms. Alertas’s testimony alleging severe pain, one of the factors cited by
the ALJ was evidence that Ms. Alertas has overused and was dependent on her pain medications,
suggesting that she may have been overstating her symptoms in order to obtain those
medications. Medical records reveal significant concern from a number of treating and
examining physicians that Ms. Alertas was overusing medication. Although Dr. Oppenheimer’s
records show that Ms. Alertas claimed her Vicodin overuse only resulted in running out of

PAGE 14 – OPINION AND ORDER

medication twice per year, Dr. Oppenheimer noted immediately afterward that other records
showed Ms. Alertas’s statement was “minimizing.” AR 743. Ms. Alertas points to her
discontinued use of Compazine and Valium in 2008 as evidence that she was not overusing her
pain medications; however, Compazine and Valium are primarily used to treat nausea and
anxiety, respectively, not pain. As late as May 16, 2008, Dr. Jennifer Gibson stated that Ms.
Alertas was “habitually overusing her medications.” AR 806. The ALJ’s conclusion that Ms.
Alertas’s claims of severe disabling pain are not fully credible because of her overuse of pain
medications is supported by substantial evidence.
The ALJ also found that Ms. Alertas’s credibility is more generally diminished by
evidence from Dr. Bryan that Ms. Alertas overstates her symptoms and put forth only marginally
valid effort on cognitive tests. Dr. Bryan conducted a number of tests during his appointment
with Ms. Alertas, yielding scores measuring Ms. Alertas’s response validity, intellectual
functioning, intelligence, attention, concentration, psychomotor speed, memory, processing
speed, language functioning, visual-spatial constructional functioning, and new learning and
memory functions. AR 842-44. Dr. Bryan found that Ms. Alertas’s validity scores are “below the
range of valid effort.” AR 842. Where “even genuinely cognitively impaired individuals” usually
score above 90 percent, Ms. Alertas scored 75 percent, and other scores are “suspicious for poor
effort.” Id. Dr. Bryan described all of Ms. Alertas’s function scores as either “Extremely Low,”
“Low Average,” or “Borderline.” Id. Dr. Bryan interpreted these scores as conservative estimates
of Ms. Alertas’s abilities because of her invalid effort, and suggested that they likely overstate
her symptoms and distress. AR 846. Dr. Bryan concluded that Ms. Alertas’s scores are not
conclusive of either deliberate feigning or valid psychopathology, but provisionally diagnosed
Ms. Alertas with a Somatoform Pain Disorder. AR 846-48. Contrary to Ms. Alertas’s assertions

PAGE 15 – OPINION AND ORDER

that Dr. Bryan’s report clearly attributes Ms. Alertas’s symptom overstatement to a somatoform
disorder, Dr. Bryan’s conclusions reflect ambivalence, and suggest that determining
Ms. Alertas’s actual cognitive and emotional symptoms and abilities would “require her full and
valid effort.” AR 847.
Ms. Alertas cites text in the Social Security Program Operations Manual System
(“POMS”) discouraging the use of tests like those conducted by Dr. Bryan for credibility
determinations. SSA, POMS, § DI 22510.007 (Nov. 26, 2012). The POMS, however, is an
internal guidance document representing the Social Security Administration’s (“SSA”)
interpretation; the POMS does not impose judicially enforceable duties. Lockwood, 616 F.3d
at 1073. Furthermore, the section of the POMS cited by Ms. Alertas appears to have only been in
effect between November 26, 2012 and sometime in 2013, after which time it was replaced by
more specific guidance instructing ALJ’s not to order such tests. Office of the Inspector Gen.,
SSA, A-08-13-23094, Congressional Response Report: the Social Security Administration’s
Policy on Symptom Validity Tests in Determining Disability Claims 3-4 (September 2013),
available at http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-08-13-23094.pdf. Neither the
relevant text currently found in the POMS nor the earlier text cited by Ms. Alertas was in effect
either when Dr. Bryan conducted these tests or when the ALJ issued his decision. They therefore
unpersuasive.
These were not the only grounds the ALJ found for discounting Ms. Alertas’s pain
testimony. The ALJ also cited evidence in the record that Ms. Alertas’s pain was controlled and
stable when treated with methadone, Vicodin, or a combination of the two. AR 28. Dr. Gibson
noted in April 2008 that Ms. Alertas “actually has no pain currently because she describes herself
as being completely physically inactive, sitting on the couch.” AR 759. In October 2009,

PAGE 16 – OPINION AND ORDER

Dr. Liptan recorded that Ms. Alertas was “doing well on current regimen of Vicodin 4 per day”
and got “about 70% pain relief.” AR 788. Even after Dr. Bryan’s provisional diagnosis of a
Somatoform Pain Disorder, Dr. Kim Kelly noted that Ms. Alertas’s pain was “doing well” on
Vicodin and rated a two out of ten, and that medication “improve[d] pain 75%, allow[ed]
[Ms. Alertas] to function and do [activities of daily living].” AR 884, 886.
On their own, the test scores from Ms. Alertas’s visit with Dr. Bryan would not constitute
substantial evidence sufficient to support the ALJ’s credibility determination. The ALJ’s
conclusion that Ms. Alertas’s testimony overstates the severity of her pain, however, was also
supported by medical records consistently indicating that Ms. Alertas’s pain is adequately
controlled by medication. The ALJ did not err by finding that Ms. Alertas’s pain testimony is not
credible beyond what is attributable to her medically supported impairments. Regardless of
whether Ms. Alertas’s overstatement of symptoms was due to deliberate feigning or a
Somatoform Pain Disorder, the evidence is sufficient to support the ALJ’s conclusion that
Ms. Alertas’s testimony alleging disabling pain is not credible.
The ALJ also concluded that Ms. Alertas’s credibility is diminished due to “questionable
motivation to work,” based on her failure to seek new work after she was fired from her job as a
cashier in 2009 for “reasons unrelated to her alleged impairments.” AR 30. Ms. Alertas testified
that she was fired after being accused by her employer of stealing. Ms. Alertas’s uncontradicted
testimony on this point, however, is that she was actually unable to perform the duties of the job.
AR 46-47. Ms. Alertas also made numerous attempts after her initial radiation treatments in 2000
to return to her job at a CPA firm, before which she had a long and uninterrupted work history.
The ALJ’s conclusion that Ms. Alertas has “questionable motivation to work” is not supported
by substantial evidence. Although the ALJ’s assertion that Ms. Alertas has questionable

PAGE 17 – OPINION AND ORDER

motivation to work was in error, his credibility determination overall is supported by substantial
evidence and is unchanged by the exclusion of Ms. Alertas’s motivation. See Batson, 359 F.3d
at 1997.
D. Lay Witness Testimony
Ms. Alertas argues that the ALJ erred by failing to give appropriate weight to the
testimony of a lay witness, Ms. Alertas’s brother-in-law Kermit Thompson, and that giving
appropriate weight to Mr. Thompson’s testimony would have required the inclusion of further
limitations in Ms. Alertas’s RFC. The ALJ considered Mr. Thompson’s written testimony during
discussion of Ms. Alertas’s RFC. Ms. Alertas argues that the ALJ only discussed certain parts of
Mr. Thompson’s testimony that supported the ALJ’s decision, but failed to discuss testimony
that Ms. Alertas has anxiety attacks in crowded places, gets lost, becomes combative and angry
during disagreements, does not get along with authority figures, has limited concentration ability,
has only fair ability to follow instruction, handles stress and changes to routine poorly, is afraid
of falling, and keeps the lights on all the time. Ms. Alertas argues that those limitations, if
credited, would alter the RFC.
Lay witness testimony as to a claimant’s symptoms is competent evidence that the
Commissioner must take into account, unless he or she expressly decides to disregard such
testimony, in which case “he must give reasons that are germane to each witness.” Dodrill v.
Shalala, 12 F.3d 915, 919 (9th Cir. 1993). An ALJ “need not discuss all evidence presented to
[him or] her. Rather, [he or] she must explain why ‘significant probative evidence has been
rejected.’” Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-1395 (9th Cir. Cal. 1984)
(emphasis in original) (quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981)).
Although the ALJ did not discuss every observation made in Mr. Thompson’s statement,
he did not reject Mr. Thompson’s testimony. The limitations that Ms. Alertas claims the ALJ
PAGE 18 – OPINION AND ORDER

failed to consider in relation to Mr. Thompson’s testimony are included in the RFC. The RFC
precludes Ms. Alertas from interacting with the public due to her anxiety and limits her to
unskilled work and routine tasks due to her reduced concentration and ability to follow
instructions. Consistent with a fear of falling, she is also precluded in the RFC from climbing
ladders, ropes and scaffolds entirely, and from climbing ramps and stairs, balancing, stooping,
kneeling, crouching, or crawling more than occasionally. Because the RFC includes the
limitations suggested by Mr. Thompson’s testimony, the ALJ did not erroneously reject
Mr. Thompson’s testimony.
E. Residual Functional Capacity
Ms. Alertas argues that the ALJ erred in the determination of her RFC by failing
adequately to consider Ms. Alertas’s alleged balance problems, pain disorder, and mental
function limitations. The ALJ declined to include limitations due to balance problems, severe
pain, and mental function impairments to the full extent that Ms. Alertas complained of in her
testimony; however, as the Court previously concluded, the ALJ properly rejected the credibility
of Ms. Alertas’s testimony as to those impairments. Although the ALJ did not completely
preclude certain functions and activities in the RFC, lesser limitations are included consistent
with the ALJ’s credibility analysis.
The RFC includes limitations on Ms. Alertas’s capacity to perform anything more than
light work, as necessitated by the level of pain found credible by the ALJ. The RFC bars
Ms. Alertas from climbing ladders, ropes or scaffolds, and limits her to climbing ramps and
stairs, balancing, stooping, kneeling, crouching, and crawling only occasionally, consistent with
some degree of balance problems. Finally, the RFC limits Ms. Alertas to only unskilled work and
routine tasks, consistent with mild or moderate mental and cognitive impairments. Ms. Alertas’s
argument that the RFC does not adequately reflect these limitations is unpersuasive.
PAGE 19 – OPINION AND ORDER

F. Borderline Age
Ms. Alertas also argues that the ALJ and the Appeals Council erred by failing to consider
her “borderline age situation” and award benefits as of her 55th birthday. Ms. Alertas argues
both that the Appeals Council failed to address the fact that Ms. Alertas had ascended to a higher
age category after the ALJ’s decision and that the ALJ failed to consider whether Ms. Alertas
should have been determined to fall within that higher age category due to a “borderline age
situation” at the time of the ALJ’s decision.
In applying a claimant’s age as a vocational factor, the ALJ must determine which of
three age categories the claimant falls into: “younger person,” “person closely approaching
advanced age,” or “person of advanced age.” 20 C.F.R. §§ 404.1563(c)-(e). A claimant is
considered to be a “person of advanced age” if their chronological age is 55 or older. 20 C.F.R. §
404.1563(e). If a claimant is “within a few days to a few months of reaching an older age
category, and using the older age category would result in a determination or decision that
[claimant is] disabled, [the ALJ] will consider whether to use the older age category after
evaluating the overall impact of all the factors of [claimant’s] case.” 20 C.F.R. § 404.1563(b).
At the time of the ALJ’s hearing and decision Ms. Alertas was 54 years old and was
approximately four months away from turning 55. Accordingly, the ALJ was required to
consider whether Ms. Alertas should be considered a “person of advanced age” instead of a
“person closely approaching advanced age”; the ALJ was not required, however, to explain in
writing why he used Ms. Alertas’s chronological age rather than the older age category.
Lockwood v. Comm’r Soc. Sec., 616 F.3d 1068, 1070 (9th Cir. 2010). The court in Lockwood did
not decide whether an ALJ must provide express evidence that he or she considered the
claimant’s borderline age situation, but found that where the ALJ had referenced the claimant’s
age and the applicable regulation, she had adequately considered the claimant’s age. Id. at 1071.
PAGE 20 – OPINION AND ORDER

Here, the ALJ explicitly referenced Ms. Alertas’s birthdate and the fact that she had already
changed age categories once previously, and cited § 1563; the ALJ was aware of Ms. Alertas’s
age and of the ALJ’s discretion under the regulation to use the higher age category. AR 32.
In deciding Lockwood, the Ninth Circuit relied heavily on the Sixth Circuit’s reasoning in
Bowie v. Commissioner of Social Security, 539 F.3d 395 (6th Cir. 2008), holding that § 1563
“merely promises claimants that the Commission will ‘consider’ veering from the chronologicalage default in borderline situations” and does not impose a per se requirement that an ALJ
explain a borderline age situation decision. 539 F.3d at 399. The Bowie court, however, also
suggested that where the record indicates that using a higher age category would be appropriate,
an ALJ’s failure to provide some indication of consideration of the borderline age situation might
constitute to a lack of substantial evidence for that decision upon judicial review in cases where
substantial evidence supports using the higher age category. Id.
The SSA provides examples of “additional vocational adversities” whose presence may
indicate that a higher age category is appropriate in a borderline age situation. See Office of
Hearings and Appeals, SSA, Hearings, Appeals and Litigation Law Manual (“HALLEX”)
II-5-3-2 (“Application of the Medical-Vocational Guidelines in Borderline Age Situations”).
Examples of additional vocational adversities include being barely literate, having “marginal”
English skills, or having only an unskilled work history in an isolated industry. Id. The HALLEX
indicates that the further a claimant is from the date when the claimant’s chronological age will
place them in the higher age category, the greater the additional vocational adversities that must
be demonstrated. Id. The HALLEX, however, “does not impose judicially enforceable duties on
either the ALJ or [a] court.” Lockwood, 616 F.3d at 1072.

PAGE 21 – OPINION AND ORDER

Although little other guidance exists on what constitutes an additional vocational
adversity, the Bowie court found no evidence of additional vocational adversities even where the
plaintiff suffered from “hypertension, aortic stenosis, and recurrent depression.” Bowie, 539 F.3d
at 396. Similarly, in Lockwood, no additional vocational adversities existed when the plaintiff
suffered from “degenerative disc disease of the lumbar spine with a history of fusion; a history of
foot surgery; anxiety; a depressive disorder; and alcoholism.” Lockwood, 616 F.3d at 1070. The
adversities alleged by Ms. Alertas – limited depth perception, the need to avoid hazards, no
public interaction, and only unskilled, routine tasks – are limitations that should be (and are)
included in the RFC; not additional vocational adversities requiring use of a higher age category.
Nothing in the record indicates that Ms. Alertas has any adversities akin to being barely literate,
having marginal English skills, or having only an unskilled work history in an isolated industry.
The ALJ did not err by failing to further explain his consideration of Ms. Alertas’s age category.
The Court notes, however, that Ms. Alertas’s age at the time of this opinion, 57, makes
her a “person of advanced age” and that her RFC of light work, with a high school education or
more, limited only to unskilled work, when combined with her current chronological age
requires a finding of disability under the Medical-Vocational Guidelines. 20 C.F.R. Pt. 404,
Subpt. P, App. 2, Table 2; 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.00(c). If Ms. Alertas had
applied for SSI benefits on her 55th birthday, she would have been found eligible for benefits.
In Chavez v. Brown, 844 F.2d 691 (1988), the Ninth Circuit held that a change in age
constituted “changed circumstances” when it was outcome determinative under the MedicalVocational Guidelines. In that case, an individual applied for benefits twice: before and after
turning 50 and ascending to the “closely approaching advanced age” category. Both applications
were denied, with the second denial citing the ALJ’s determination that the claimant was not

PAGE 22 – OPINION AND ORDER

disabled on the first application as preclusive. The court considered the appeal of the second
denial of benefits and held that the ALJ’s determination of the claimant’s RFC related to the first
application was “entitled to some res judicata consideration” but that the ultimate determination
that the claimant was not disabled was not. Chavez, 844 F.2d at 693-94. Based on the first RFC
and the claimant’s new age category, the claimant was disabled. Id.
In this case, the ALJ’s finding that Ms. Alertas can perform only light unskilled work and
routine tasks would be preclusive upon a new application by Ms. Alertas for SSI benefits, or if
she had applied on or after her 55th birthday. The record established that Ms. Alertas had a high
school education. Because the ALJ found that Ms. Alertas is unable to perform past work, it
would be appropriate to consult the Medical-Vocational Guidelines. Considering the change in
Ms. Alertas’s age category, the Medical-Vocational Guidelines would require a finding that
Ms. Alertas is now disabled and has been since her 55th birthday on April 18, 2012. 20 C.F.R.
Pt. 404, Subpt. P, App. 2, Table 2; 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.00(c). As a matter
of judicial economy, the denial of Ms. Alertas’s application for SSI benefits is reversed and the
case is remanded to the ALJ for an award of SSI benefits as of April 18, 2012.
CONCLUSION
The Commissioner’s decision that Ms. Alertas is not disabled is AFFIRMED as to Ms.
Alertas’s application for Disability Insurance Benefits, and REVERSED and remanded for an
award of benefits as of April 18, 2012 as to Ms. Alertas’s application for Supplemental Security
Income benefits.
IT IS SO ORDERED.
DATED this 13th day of June, 2014.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 23 – OPINION AND ORDER