Jones v. Commissioner of Social Security

Filing 22

Opinion and Order - The Commissioner's decision that Jones is not disabled is REVERSED and this case is REMANDED for further proceedings as directed herein. Signed on 7/18/2014 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LAURA ANN JONES,
Plaintiff,

Case No. 13-890
OPINION AND ORDER

v.
CAROLYN W. COLVIN,
Commissioner of Social Security
Defendant.
Lisa R.J. Porter, KP Law LLC, 16200 SW Pacific Hwy., Suite H-280, Portland, OR 97224.
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; Kathryn A. Miller, Special Assistant United States Attorney, Office of
General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 M.S 221A,
Seattle, WA 98104.
Attorneys for Defendant.
Michael H. Simon, District Judge.
Laura Ann Jones (“Jones”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her application
for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under the

PAGE 1 – OPINION AND ORDER

Social Security Act. For the reasons discussed below, the Commissioner's decision is
REVERSED and this case is REMANDED for further proceedings.
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.
BACKGROUND
Jones was born October 20, 1963 and is 50 years old. AR 110. Jones filed for DIB and
SSI on April 23, 2010, alleging disability beginning January 1, 2009. AR 19. In his
PAGE 2 – OPINION AND ORDER

December 11, 2012 decision, the Administrative Law Judge (“ALJ”) found Jones met the
insured status for DIB through December 31, 2011. AR 21. At step one, the ALJ found Jones had
not engaged in substantial gainful activity after the alleged onset date of January 1, 2009. AR 21.
At step two, the ALJ identified the following severe impairments: low back pain; irritable bowel
syndrome; partial vision loss; chronic headaches; carpal tunnel syndrome; coronary artery
disease; gastroesophageal reflux disease (GERD); chronic obstructive pulmonary disease
(COPD); depression; and anxiety. AR 21-22. At step three, the ALJ found Jones did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments in the regulations. AR 22. At step four, the ALJ found that Jones was unable to
perform her past relevant work but retained the residual functional capacity (RFC) to perform
light work with the following limitations:
The claimant is able to stand and walk for 5 hours out of an 8-hour
workday in 30-minute increments . . . . lift 15 pounds . . . . [and] do
occasional postural movement, but not climb ladders or crawl. The
claimant is not able to work at heights and should have no exposure to
hazards. The claimant should not operate heavy machinery. The claimant
is able to have superficial contact with the general public and should work
independently. The claimant should have a tolerant/patient supervisor who
provides hands-on training for changes in the workplace. The claimant is
able to frequently, but not repetitively, handle objects.
AR 28, 24. In arriving at this conclusion, the ALJ considered Jones’s testimony, the lay
testimony of Jones’s boyfriend, Daniel Peterson, and the medical opinions of Drs. John Ruduff,
Stephen Rubin, Michael Henderson, James Harris, Tanya Page, Martin Lahr, Sharon Eder,
Joshua Boyd, Bill Hennings, and Luke Patrick. AR 25-28.

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At step five, relying on testimony from a vocational expert (VE), the ALJ concluded that
Jones was able to perform the job of small parts and products inspector1 and was, therefore, not
disabled. AR 29-30. Jones filed an appeal with the Appeals Council but was denied review.
AR 1. Consequently, the ALJ’s decision became the final decision of the Commissioner that is
subject to judicial review. This appeal followed. Jones argues that the ALJ erred in (a) finding
she lacked full credibility; (b) discrediting lay testimony; and (c) formulating the RFC and
presenting the hypothetical to the VE.
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.

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.

1

U.S. Dep’t of Labor, Dictionary of Occupational Titles 733.687-042 (4th ed. 1991),
available at 1991 WL 679926.
PAGE 4 – OPINION AND ORDER

2.

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.

3.

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
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.

4.

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.

5.

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

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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.
DISCUSSION
A. Plaintiff’s Credibility
Jones argues that the ALJ erroneously discounted her credibility on the basis of her daily
activities and failure to stop smoking. There is a two-step process for evaluating the credibility of
a claimant’s 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 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
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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 does not have to prepare a function-by-function analysis
for medical conditions or impairments that the ALJ finds neither credible nor supported by the
record. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
In discrediting a claimant’s credibility, 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 Ninth Circuit has said that an ALJ may also 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.” Id.
Here, the ALJ found that Jones had a number of medically determinable impairments that
could reasonably be expected to cause her alleged symptoms, but concluded that Jones’s
testimony regarding the severity of her symptoms was not entirely credible, “to the extent [it is]
inconsistent with the [RFC], for reasons discussed throughout th[e] opinion.” AR 26. The ALJ
then identified five reasons for discrediting Jones’s testimony regarding the severity of her
symptoms: (1) inconsistencies between her reported daily activities and alleged symptoms;

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(2) failure to comply with recommended medical treatment by continuing smoking; (3)
conservative treatment despite allegedly severe mental impairments; (4) inconsistency with the
objective medical evidence; and (5) prior inconsistent statements. AR 25-26. Jones only
challenges the first two reasons.
1. Daily Activities
Jones argues that the ALJ’s credibility determination was flawed because he failed to
relate her daily activities to an “inability to sustain activity.” Id. at. 24-25. There are two ways in
which daily activities can form the basis of an adverse credibility finding: where the claimant’s
activities (a) contradict the claimant’s other testimony or (b) meet the threshold for transferable
work skills.2 See Orn, 495 F.3d at 639. The Ninth Circuit has recognized that “disability
claimants should not be penalized for attempting to lead normal lives in the face of their
limitations.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
Jones argues that her situation is comparable to the claimant in Reddick, because she too
consistently described her activities as “sporadic and punctuated with rest.” Jones argues that, as
in Reddick, this Court should find that the ALJ erred in discrediting Jones’s credibility based on
her daily living activities. In Reddick, however, the ALJ erroneously found that the claimant’s
daily activities had inherent transferable work skills. 157 F.3d at 723. Here, the ALJ noted that
he “place[d] more weight upon inconsistencies than the activities themselves.” AR 25. Thus, the
ALJ did not discount Jones’s credibility because her daily activities met the transferable-workskill threshold, but because the ALJ found them inconsistent with the alleged severity of her
symptoms. The ALJ, therefore, did not err by failing to connect his credibility determination to
an inability to sustain activity.
2

Daily activities meet the threshold for transferable work skills when the claimant is able
to spend a “‘substantial’ part of [the] day engaged in transferable skills.” Orn, 495 F.3d at 639.
PAGE 8 – OPINION AND ORDER

Although an ALJ may discredit a claimant’s subjective pain testimony based on an
inconsistency with daily activities, here, the ALJ erred by concluding that Jones’s alleged
symptom testimony was inconsistent with her reported daily activities. The ALJ concluded that
Jones is “able to generally perform her activities of daily living with minimal difficulty.” AR 25.
The record as a whole, however, does not support this conclusion. In discrediting Jones’s
credibility, the ALJ referenced step three of his opinion where he concluded that Jones has “no
restriction” in her activities of daily living because she reports: dressing, bathing, and feeding
herself; caring for her two small dogs, including feeding them and taking them for short walks;
and performing basic household chores, preparing meals, and doing necessary shopping and
errands. AR 23-25.
Although Jones described engaging in these activities, she consistently qualified them as
light and requiring that she take regular breaks due to pain. See AR 48 (describing that her son
does the cooking and mopping, but she sometimes vacuums and does the dishes, with
intermittent rest, finding it hard to stand at the sink to do them), 295 (describing engaging in
“light” housework), 296 (describing doing “few” dishes, laundry once a week, and light
vacuuming), 375 (describing engaging in daily activities “with considerable pacing, taking
breaks on frequent basis due to back pain and fatigue”). Jones’s reported daily activities do not
sufficiently contradict her pain testimony in any manner that bears a meaningful relation to
Jones’s credibility. Indeed, Jones’s reported daily activities reflect only an attempt to lead a
normal life in the face of limitations. Reddick, 157 F.3d at 722; see also Cooper v. Bowen, 815
F.2d 557, 561 (9th Cir. 1987) (noting that disability claimants need not “vegetate in a dark room”
in order to be deemed eligible for benefits). The ALJ, therefore, erred in relying on Jones’s daily
activities to discount her credibility.

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2. Failure to Follow a Prescribed Course of Treatment
Jones next argues that the ALJ erred by relying on her continued smoking to discount her
credibility. The ALJ found that Jones “continues to smoke, despite being repeatedly advised and
admonished to stop smoking,” constituting a failure to follow a prescribed course of treatment.
AR 25. An ALJ may consider a failure to follow a prescribed course of treatment when weighing
a claimant’s credibility. See Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008).
Jones claims that the record fails to establish that she was given a “prescription” to quit
smoking or referrals to any cessation clinics. Jones cites to Kelley v. Callahan, 133 F.3d 583, 589
(8th Cir. 1998), to support her argument that there is a recognized difference between failure to
comply with advice by a medical provider to quit smoking and a referral to cessation services to
quit. Reliance on Kelley is misplaced; in that case, the court rejected denying benefits based a
claimant’s alleged failure to follow treatment, not discounting credibility. 133 F.3d at 589-90.
Moreover, Jones fails to provide any support for her claim that referral to a cessation clinic is
somehow requisite to establishing a “prescription” and, thus, an adverse credibility finding for
failure to quit smoking. Contrary to Jones’s contentions, substantial evidence supports the ALJ’s
determination that Jones was prescribed to quit smoking. See AR 412, 438, 531, 557, 563, 566,
574.
Citing SSR (“Social Security Ruling”) 82-59, 1982 WL 31384 (Jan. 1, 1982), Jones next
argues that the ALJ erred because the record failed to establish that quitting smoking would
enable her to work. Id. at 26. Although SSR 82-59 explicitly requires that the prescribed
treatment be “clearly expected to restore” an individual’s capacity to work, this provision relates
solely to determinations of non-disability based on an alleged failure to follow prescribed
treatment, not credibility. The ALJ did not find Jones was not disabled due to a failure to follow
prescribed treatment. Accordingly, Jones’s reliance on SSR 82-59 is misplaced.
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Next, Jones contends that she provided the ALJ an adequate explanation for failing to
stop smoking. The ALJ must consider a claimant’s reasons for failing to adhere to recommended
treatment before making an adverse credibility finding. See Smolen, 80 F.3d at 1284. An ALJ
may discount a claimant’s credibility due to an “unexplained or inadequately explained” failure
to follow a prescribed course of treatment.” Tommasetti, 533 F.3d at 1039 (emphasis added); see
SSR 96-7p, 1996 WL 374186 (July 2, 1996) (noting that the ALJ must review the record to
determine whether there are “any explanations that the individual may provide, or other
information in the case record, that may explain . . . failure to seek medical treatment” before
making an adverse credibility determination). In Lingenfelter, the Ninth Circuit rejected the
ALJ’s conclusion that the claimant “fail[ed] to follow, without adequate explanation, a
prescribed course of treatment” when his “insurance refused to authorize the recommended
surgeries.” 504 F.3d at 1040. Like the claimant in Lingenfelter, Jones provided numerous
explanations regarding her failure to quit smoking: she has a severe nicotine addiction; she lives
near others who smoke, making it difficult for her to quit; and her insurance covers only half of
the nicotine cessation products she needs. See AR 56-57, 438, 543, 716, 718. “Where a claimant
provides evidence of a good reason for not taking medication for her symptoms, her symptom
testimony cannot be rejected for not doing so.” Smolen, 80 F.3d at 1284. The fact that Jones
failed to stop smoking is not a clear and convincing reason for discrediting her symptom
testimony, and the ALJ’s reliance on this reason was error.
3. Harmless Error
Although the Court has found it was error to discount Jones’s credibility based on her
daily activities and continued smoking, the ALJ relied on other adequately supported reasons that
Jones does not challenge, namely: conservative treatment, inconsistencies between her claimed
symptoms and the objective medical evidence, and prior inconsistent statements.
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The ALJ relied on the fact that, despite claims of severe mental impairments, Jones has
“received only conservative treatment (medication) and is not engaged in psychotherapy.”
AR 25. Conservative treatment in the face of an allegedly severe impairment can justify a
claimant’s adverse credibility determination. Burch, 400 F.3d at 681; Johnson v. Shalala, 60
F.3d 1428, 1434 (9th Cir. 1995). Jones testified that she was not seeking psychotherapy due to
transportation problems. AR 44. The ALJ found Jones’s excuse inadequate because she was
“able to get to other medical appointments without apparent difficulty.” AR 25. This provides
substantial evidence to support to the ALJ’s credibility determination.
The ALJ also properly relied on inconsistencies between the severity of Jones’s alleged
symptoms and the objective medical evidence. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792
(9th Cir. 1997) (recognizing inconsistencies between the severity of claimant’s alleged
symptoms and the medical evidence is a proper basis for an adverse credibility determination).
The ALJ’s conclusion that the objective medical evidence is inconsistent with the severity of
Jones’s alleged pain is also supported by substantial evidence. For example, Jones’s claims of
severe carpel tunnel was found by Dr. Henderson to be “medically inconsistent” with his
examination. AR 26, 680. Jones also testified that she cannot do the dishes very long because it
is “hard to stand at the sink[.]” AR 48. The objective medical evidence indicates that Jones can
stand longer than it would take to wash the dishes. See AR 680 (opining that Jones can stand two
hours at a time, six hours per day), 380 (opining that Jones can stand three hours intermittently in
an eight-hour period). Jones’s pain testimony was also undermined by the opinion of Dr.
Henderson who found Jones’s “movements appear[ed] free and without restriction.” AR 678. He
noted that Jones “complained about pain in many areas of the examination” but “she did not
appear to be in pain.” Id. These reasons constitute substantial evidence in support of the ALJ’s

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conclusion that Jones’s subjective pain testimony is inconsistent with the objective medical
evidence, and that Jones, therefore, lacked full credibility.
Finally, the ALJ properly pointed to internal inconsistencies in Jones’s statements,
undermining her credibility. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001)
(noting that the ALJ may use ordinary techniques of evaluating credibility, including
consideration of “any inconsistent statements in [the claimant’s] testimony”). The ALJ noted that
Jones testified to not driving because of an inability to see and, in another instance, claimed she
did not drive because she did not own a car. AR 26. The ALJ’s conclusion that Jones made
inconsistent statements is supported by substantial evidence in the record. See AR 79 (Jones’s
hearing testimony that she does not drive because she cannot see), 375 (Jones’s inconsistent
statement that she does not drive because she does not own a car).
Relying on Jones’s conservative treatment, inconsistencies between her claimed
symptoms and the objective medical evidence, and prior inconsistent statements in discounting
her credibility, the ALJ provided specific, clear, and convincing reasons supporting his
credibility determination. See Lingenfelter, 504 F.3d at 1036. An 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. See Batson, 359 F.3d at 1197. The ALJ’s credibility determination, therefore, stands.
Any error the ALJ may have committed in relying on Jones daily activities or failure to stop
smoking was harmless because it does not negate the validity of the ALJ’s ultimate conclusion
that Jones’s lacked full credibility. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155,
1162 (9th Cir. 2008) (finding errors in the ALJ’s credibility determination harmless where the
ALJ provides “specific reasons,” “substantial evidence” supports the determination, and the error

PAGE 13 – OPINION AND ORDER

“does not negate” the validity of the ALJ’s “ultimate [credibility] conclusion” (alteration in
original) (quotations marks and citation omitted)).
B. Lay Witness Testimony
Jones next argues that the ALJ erred by failing to give germane reasons for discounting
the credibility of her boyfriend Daniel Peterson. Lay testimony regarding a claimant’s symptoms
or how an impairment affects the claimant’s ability to work is competent evidence the ALJ must
take into account. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006).
Indeed, a claimant’s lay witness, “though not a vocational or medical expert” is “not disqualified
from rendering an opinion as to how [the claimant’s] condition affects [his or her] ability to
perform basic work activities.” Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (citing 20
C.F.R. § 404.1513(d)(4)). The ALJ may reject lay testimony if he provides “arguably germane
reasons” supported by substantial evidence, even if those reasons are not clearly linked to the
ALJ’s determination. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Inconsistency with the
medical evidence constitutes a germane reason sufficient to discredit lay testimony. Bayliss, 427
F.3d at 1218. The Court will uphold the ALJ’s determination of a lay witness’s lack of credibility
due to inconsistency with the medical record if there is substantial evidence supporting the ALJ’s
decision. See id.
First, Jones argues that the ALJ improperly relied on the fact that Peterson was not
medically trained to make clinical observations in discrediting his testimony. The ALJ did not
discredit Peterson’s testimony because he lacks medical expertise; rather, while discussing
Peterson’s testimony, the ALJ merely noted that, when considering the lay testimony of persons
lacking medical training and who have not seen the claimant in a professional capacity in
connection with his or her impairments, certain factors, such as the nature and extent of the
relationship, whether the evidence is consistent with other evidence, and other factors supporting
PAGE 14 – OPINION AND ORDER

or refuting the evidence should be considered. AR 28. This rationale is a correct statement of the
law. See SSR 06–03p, 2006 WL 2329939, at *5 (Aug. 9, 2006) (noting that, when considering
the opinion of “non-medical professionals, it would be appropriate to consider such factors as the
nature and extent of the relationship between the source and the individual . . . whether the
opinion is consistent with other evidence, and any other factors that tend to support or refute the
opinion”).
Second, Jones contends that the ALJ failed to provide a germane reason to discredit
Peterson’s testimony. The ALJ found Peterson’s statement “generally credible as to his
observations,” but “inconsistent with the medical evidence[.]” AR 28. Jones misunderstands the
ALJ’s rationale, arguing that the ALJ erroneously discredited Peterson’s testimony because it
was not corroborated by the medical evidence. The ALJ, however, did not discredit Peterson’s
testimony because the severity of Jones’s alleged symptoms were not corroborated by medical
evidence. Peterson’s testimony was discredited because it was “inconsistent” with the medical
evidence and Jones’s reported level of activity.3 AR 28. An ALJ’s finding that lay opinion
testimony conflicts with medical evidence is a germane reason to reject such testimony. Barton
v. Astrue, 500 F. App’x 607, 609 (9th Cir. 2012) (unpublished) (citing Bayliss, 427 F.3d at
1218); see also Lewis, 236 F.3d at 511 (“One reason for which an ALJ may discount lay
testimony is that it conflicts with medical evidence.”). That Peterson’s testimony was
inconsistent with the medical evidence is also supported by substantial evidence. For example,
Peterson testified that Jones is unable to squat. AR 308. Medical evidence indicates that Jones
can perform a full squat and recovery. AR 26, 379. Additionally, Peterson’s reports of Jones’s
3

Much of Peterson’s testimony regarding the severity of Jones’s symptoms is virtually
identical to Jones’s own testimony. As Jones’s reports of daily activities were an improper basis
to reject her credibility, so too is the ALJ’s discrediting of Peterson’s testimony on that ground.
See supra Part A.1.
PAGE 15 – OPINION AND ORDER

limitations in standing, which mirrors Jones’s testimony, is undermined by the medical evidence
for the same reasons Jones’s testimony was undermined by the medical evidence. See supra Part
A.3. The ALJ, thus, did not err in discrediting Peterson’s statements for those same reasons. See
Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (noting that where the
ALJ provides clear and convincing reasons to discount a claimant’s credibility, “it follows that
the ALJ also gave germane reasons for rejecting [similar lay] testimony”).
C. RFC and Hypothetical Provided to the VE
Lastly, Jones argues that the ALJ erroneously omitted from the RFC and hypothetical
presented to the VE the functional limitations caused by her PTSD (post-traumatic stress
disorder), depression, and anxiety, which were described in the medical opinions to which the
ALJ gave great weight. Jones contends that: (1) the hypothetical provided to the VE failed to
provide sufficient information for the VE to properly incorporate the RFC’s limitation requiring
a tolerant and patient supervisor and (2) the RFC failed to include Dr. Patrick’s conclusion that
Jones has “moderate” limitations in persistence.
1. Tolerant and Patient Supervisor Limitation
The RFC included a limitation requiring that Jones have a tolerant and patient supervisor.
AR 24. At the hearing, the ALJ included in the dispositive hypothetical to the VE the limitation
that Jones must have a tolerant and patient supervisor. AR 83. When Jones’s counsel later
inquired into the meaning of “tolerant and patient supervisor,” the VE stated that the party
offering the hypothetical must define that limitation and that “variables” defining the meaning of
“tolerant and patient supervisor” must be provided before that limitation could be properly
evaluated. AR 89-90. Variables defining the limitation of a tolerant and patient supervisor,
however, were never provided by the ALJ to the VE. See AR 80-106. Thus, the transcript reveals
that the VE lacked an adequate understanding of Jones’s limitation requiring a tolerant and
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patient supervisor and, as a result, the VE failed to include it in his analysis regarding potential
jobs that Jones could perform. Notably, when pressed on this point, the VE testified that without
proper clarification, he “[did] not put a lot of weight on that classification.” AR 89.
Because the RFC included the limitation of a tolerant and patient supervisor, it was error
for the ALJ to fail to provide sufficient information in the hypothetical to the VE for the VE to
properly incorporate this limitation. See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988)
(“Because the hypothetical posed by the ALJ to the [VE] did not reflect all of [the claimant’s]
limitations, the expert’s opinion has no evidentiary value and cannot support the ALJ’s decision.
This requires that we remand [the claimant’s] case to the Secretary for reconsideration.”). This
issue is, therefore, remanded so that the ALJ can provide the VE a sufficient description of
Jones’s limitation to a tolerant and patient supervisor.
2. Persistence Limitations
Next, Jones argues that the RFC and the hypothetical provided to the VE failed to include
Dr. Patrick’s conclusion that Jones has a moderate limitation in persistence due to depression. In
addition to consultative examining psychologist Dr. Patrick, State agency psychologists Drs.
Boyd and Hennings evaluated Jones’s mental impairments and opined as to Jones’s functional
limitations. Dr. Patrick concluded that with respect to persistence, Jones would likely be
“moderately impacted by depressive symptoms, including irritability and motivation.” AR 37576. The ALJ afforded “considerable weight” to Dr. Patrick’s opinion that Jones has a “moderate”
limitation in persistence. AR 28. Drs. Boyd and Hennings opined that Jones has only a “mild”
limitation in concentration, persistence, or pace. AR 115, 128, 147, 162. With respect to
concentration and persistence, Drs. Boyd and Hennings concluded that depression would
interfere with Jones “completing detailed tasks on a consistent basis,” but not her ability to
“carry out simple tasks.” AR 119, 132, 151, 152, 166, 167. The ALJ afforded “significant
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weight” to Drs. Boyd and Hennings’ opinions. AR 28. The ALJ also explicitly found that Jones
has “mild” limitations in concentration, persistence, or pace. AR 23.
An RFC determines a claimant’s “capacity for work activity on a regular and continuing
basis.” 20 C.F.R. § 404.1545(b)-(c). It characterizes “the most” a claimant can do in a “work
setting,” despite “limitations.” 20 C.F.R. § 404.1545(a)(1). The “RFC assessment considers only
functional limitations and restrictions that result from an individual’s medically determinable
impairment or combination of impairments, including the impact of any related symptoms.”
SSR 96–8p, 1996 WL 374184, at *1 (July 2, 1996); see also 20 C.F.R. § 404.1528(b)-(c). The
functional limitations caused by a claimant’s medically determinable impairments include
“medically determinable impairments that are not ‘severe.’” 20 C.F.R. § 404.1545(a)(2). The
ALJ must assess “all of the relevant medical and other evidence” pertaining to a claimant’s
“ability to meet the physical, mental, sensory, and other requirements of work.” 20 C.F.R.
§ 404.1545(a)(3), (4). Mental limitations potentially affecting one’s ability to work include:
“limitations in understanding, remembering, and carrying out instructions, and in responding
appropriately to supervision, co-workers, and work pressures in a work setting . . . .” 20 C.F.R.
§ 404.1545(c).
“[A]n RFC that fails to take into account a claimant’s limitations is defective.”
Valentine, 574 F.3d at 690. An ALJ “may not ignore” findings of fact by “State agency medical
and psychological consultants and other program physicians and psychologists.” SSR 96-6p,
1996 WL 374180, at*2 (July 2, 1996). Indeed, RFC assessments “must always consider and
address medical source opinions. If the RFC assessment conflicts with an opinion from a medical
source, the adjudicator must explain why the opinion was not adopted.” SSR 96-8p, 1996
WL 374184, at *7.

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With respect to non-exertional limitations, the RFC provides that Jones “is able to have
superficial contact with the general public,” “should work independently,” and “should have a
tolerant/patient supervisor who provides hands-on training for changes in the workplace.”
AR 24. The question is whether the RFC adequately translated the credited medical opinions
regarding Jones’s mental impairments, which limit Jones to “simple tasks” and “non-direct
public contact and casual interactions [with] co-workers” and include moderate limitations in
persistence, into sufficient functional limitations. See Amanti v. Comm'r Soc. Sec. Admin., 2012
WL 5879530, at *5 (D. Or. Nov. 19, 2012) (“Where the ALJ credits the opinion of a physician,
the ALJ must translate the plaintiff’s condition as described in the physician’s opinion into
functional limitations in the RFC.”).
Here, the ALJ found that Jones has a mild limitation in concentration, persistence, or
pace but yet afforded considerable weight to Dr. Patrick’s opinion that Jones has a “moderate”
limitation in persistence due to depression. AR 23, 28. The ALJ failed to explain why he
discounted Dr. Patrick’s finding of a moderate limitation in persistence.
The Commissioner contends that the RFC and hypothetical to the VE contained all of
Jones’s mental limitations because they reflected Drs. Boyd and Hennings’ translation of
Dr. Patrick’s noted persistence limitations, requiring that Jones perform “simple tasks.” Contrary
to the Commissioner’s contention, however, the ALJ omitted from the RFC any limitation
relating to persistence generally or “simple tasks” specifically. The ALJ is responsible for
resolving conflicts in the medical evidence. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d
1155, 1164 (9th Cir. 2008). If the ALJ was rejecting Dr. Patrick’s opinion regarding Jones’s
moderate limitation in persistence, he was required to provide specific, legitimate reasons. See
Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995) (“[T]he opinion of an examining doctor,

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even if contradicted by another doctor, can only be rejected for specific and legitimate reasons
that are supported by substantial evidence in the record.”) (citations and internal quotation marks
omitted); Amanti, 2012 WL 5879530, at *5; SSR 96-8p, 1996 WL 374184, at *7 (When the RFC
conflicts with the medical source opinions, the ALJ “must explain why the opinion was not
adopted.”).
Because the RFC omitted limitations identified in the medical opinions of Dr. Patrick, the
RFC and hypothetical to the VE failed to include all of Jones’s functional limitations caused by
her mental impairments. See Embrey, 849 F.2d at 423; Flores v. Shalala, 49 F.3d 562, 570 (9th
Cir. 1995) (noting that the hypothetical posed to the VE must “include all of the claimant’s
functional limitations”). Accordingly, this case is remanded so that the ALJ may either reject,
with specific and legitimate reasons, Dr. Patrick’s opinion that Jones has a moderate limitation in
persistence or include this limitation in the RFC and hypothetical to the VE.
CONCLUSION
The Commissioner’s decision that Jones is not disabled is REVERSED and this case is
REMANDED for further proceedings as directed herein.
IT IS SO ORDERED.
DATED this 18th day of July, 2014.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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