Cantrell v. Commissioner Social Security Administration
Filing
19
OPINION & ORDER: The Commissioner's final decision is Affirmed. A final judgment shall be prepared. Signed on 9/10/14 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BARBARA E. CANTRELL,
Plaintiff,
Case 3:13-cv-00934-PK
OPINION AND ORDER
v.
CAROLYN W. COLVIN
Acting Commissioner of Social Security,
Defendant.
PAP AK, Magistrate Judge:
Plaintiff Barbara E. Cantrell filed this action on June 22, 2009, seeking judicial review of
the Commissioner of Social Security's decision denying her application for supplemental
security income payments under Title XVI of the Social Security Act. This court has
Page 1 - OPINION AND ORDER
jurisdiction over plaintiff's action pursuant to 42 U.S.C. § 405(g). I have considered all of the
paiiies' briefs and all of the evidence in the administrative record. For the reasons set forth
below, the Commissioner's final decision is affinned.
DISABILITY ANALYSIS FRAMEWORK
To establish disability within the meaning of the Act, a claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not
less than 12 months." 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step
sequential process for determining whether a claimant has made the requisite demonstration.
See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. 416.920(a)(4). At the first
four steps of the process, the burden of proof is on the claimant; only at the fifth and final step
does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999).
At the first step, the Administrative Law Judge ("ALJ") considers the claimant's work
activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. 416.920(a)(4)(i). If the ALJ
finds that the claimant is engaged in substantial gainful activity, the claimant will be found not
disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. 416.920(a)(4)(i), 416.920(b).
Otherwise, the evaluation will proceed to the second step.
At the second step, the ALJ considers the medical severity of the claimant's impairments.
See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. 416.920(a)(4)(ii). An impairment is
"severe" if it significantly limits the claimant's ability to perfonn basic work activities and is
expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see
also 20 C.F.R. 416.920(c). The ability to perform basic work activities is defined as "the
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abilities and aptitudes necessmy to do most jobs." 20 C.F.R. 416.921(b); see also Bowen, 482
U.S. at 141. If the ALJ finds that the claimant's impahments are not severe or do not meet the
duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see
also 20 C.F.R. 416.920(a)(4)(ii), 416.920(c). Neve1iheless, it is well established that "the steptwo inquhy is a de minimis screening device to dispose of groundless claims." Smolen v.
Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996), citing Bowen, 482. U.S. at 153-154. "An
impairment or combination of impairments can be found 'not severe' only if the evidence
establishes a slight abnormality that has 'no more than a minimal effect on an individual[']s
ability to work." Id, quoting SSR 85-28, 1985 WL 56856 (1985).
If the claimant's impairments are severe, the evaluation will proceed to the third step, at
which the ALJ determines whether the claimant's impainnents meet or equal "one of a number
oflisted impairments that the [Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. 416.920(a)(4)(iii),
416.920(d). If the claimant's impairments are equivalent to one of the impairments enumerated
in 20 C.F.R. 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See Bowen,
482 U.S. at 141; see also 20 C.F.R. 416.920(a)(4)(iii), 416.920(d).
If the claimant's impairments are not equivalent to one of the enumerated impairments,
between the third and the fomih steps the ALI is required to assess the claimant's residual
functional capacity ("RFC"), based on all the relevant medical and other evidence in the
claimant's case record. See 20 C.F.R. 416.920(e). The RFC is an estimate of the claimant's
capacity to perform sustained, work-related physical and/or mental activities on a regular and
continuing basis,' despite the limitations imposed by the claimant's impainnents. See 20 C.F.R.
1
"A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work
schedule." SSR 96-8p, 1996 WL 374184 (July 2, 1996).
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416.945(a); see also SSR 96-8p, 1996 WL 374184 (July 2, 1996).
At the fomih step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. 416.920(a)(4)(iv).
If, in light of the claimant's RFC, the ALJ determines that the claimant can still perfonn his or
her past relevant work, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see
also 20 C.F.R. 416.920(a)(4)(iv), 416.920(f). In the event the claimant is no longer capable of
performing his or her past relevant work, the evaluation will proceed to the fifth and final step, at
which the burden of proof shifts, for the first time, to the Commissioner.
At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's age, education, and work experience to dete1mine whether a person with those
characteristics and RFC could perform any jobs that exist in significant numbers in the national
economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. 416.920(a)(4)(v), 416.920(g),
416.960(c), 416.966. If the Commissioner meets her burden to demonstrate the existence in
significant numbers in the national economy of jobs capable of being performed by a person
with the RFC assessed by the ALJ between the third and fomih steps of the five-step process, the
claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R.
416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. A claimant will be found entitled to benefits
ifthe Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see
also 20 C.F.R. 416.920(a)(4)(v), 416.920(g).
LEGAL STANDARD
A reviewing court must affom an Administrative Law Judge's decision if the ALJ applied
proper legal standards and his or her findings are suppo1ied by substantial evidence in the record.
See 42 U.S.C. § 405(g); see also Batson v. Comm'r ofSoc. Sec. Admin., 359 F.3d 1190, 1193
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(9th Cir. 2004). "'Substantial evidence' means more than a mere scintilla, but less than a
preponderance; it is such relevant evidence as a reasonable person might accept as adequate to
suppmt a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
The comt must review the record as a whole, "weighing both the evidence that suppo1is
and the evidence that detracts from the Commissioner's conclusion." Id., quoting Reddick v.
Chafer, 157 F.3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of
the Commissioner. See id, citing Robbins, 466 F.3d at 882; see also Edlund v. ivfassanari, 253
F.3d 1152, 1156 (9th Cir. 2001). Moreover, the court may not rely upon its own independent
findings of fact in determining whether the ALJ's findings are suppo1ted by substantial evidence
of record. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947). If the ALJ's interpretation of the evidence is rational, it is
immaterial that the evidence may be "susceptible [of] more than one rational interpretation."
lvfagallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d
1450, 1453 (9th Cir. 1984).
PROCEDURAL HISTORY AND BACKGROUND
Cantrell received treatment from Karen Potampa, R.N., F.N.P., at the Mountain View
Professional Center in connection with virtually all of her medical needs during the period from
2002 through 2011. During that period, Potampa recorded approximately 30 in-person and
telephonic consultations with Cantrell.
Effective June 29, 2009, Cantrell protectively filed concmTent applications for disability
insurance benefits ("DIB") and social security income ("SSI") under Titles II and XVI of the
•
Act, alleging a disability onset date of January 1, 2001. (Tr. 162-175). On July 21, 2009,
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5
Cantrell's daughter, Michelle Bushard, provided written testimony as to the manner in which
Cantrell's "illnesses, injuries, or conditions limit []her activities." (Tr. 205-212).
On October 15, 2009, Cantrell was refened to Administration consultative examiner
Nancy Maloney, M.D., for a physical disability examination. (Tr. 347-351). Dr. Maloney
performed a physical examination and reviewed Cantrell's past medical records. (Tr. 347-349).
Based on her review and examination, Dr. Maloney opined that Cantrell was capable of
occasionally lifting and/or carrying 20 pounds, frequently lifting and/or carrying ten pounds,
standing and/or walking at least two hours in an eight-hour workday, sitting for a total of less
than about six hours in an eight-hour workday but must periodically alternate sitting and
standing to relieve pain or discomfort, and unlimited pushing and/or pulling. (Tr. 350). Dr.
Maloney further opined that Cantrell was capable of occasionally balancing, stooping, kneeling,
crouching, and crawling, but was to never climb ramps, stairs, ladders, ropes, or scaffolds. (Tr.
350). Dr. Maloney additionally opined that Cantrell was capable of frequently reaching in all
directions (including overhead), handling (gross manipulation), fingering (fine manipulation),
and feeling (skin receptors), but should avoid frequent exposure to extreme cold, extreme heat,
vibration, and hazards (machinery, heights, etc.). (Tr. 351). Finally, Dr. Maloney opined that
Cantrell should avoid occasional exposure to noise and fumes, odors, dusts, gases, and poor
ventilation, but should not be restricted from wetness or humidity. (Tr. 351 ). Dr. Maloney
ultimately diagnosed Cantrell with fibromyalgia, diabetes mellitus, and hypothyroidism. (Tr.
351).
On December 2, 2009, Administration consultant physician Linda Jensen, M.D.,
conducted a review of Cantrell's medical records and completed an assessment of her physical
residual functional capacity (an "RFCA"), considering the period from January 1, 2003 to
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December 2, 2009. (Tr. 352-359). Dr. Jensen opined that Cantrell could occasionally lift and/or
carry 20 pounds, frequently lift and/or cany ten pounds, stand and/or walk for a total of at least
two hours in an eight-hour workday, sit for a total ofless than about six hours in an eight-hour
day, and was unlimited in her ability to push and/or pull. (Tr. 353). Dr. Jensen further opined
that Cantrell was capable of occasionally climbing ladders, ropes, and scaffolds, and frequently
climbing ramps and stairs, balancing, stooping, kneeling, crouching, and crawling. (Tr. 354).
Dr. Jensen further opined that Cantrell had no manipulative, visual, or communicative
limitations. Finally, Dr. Jensen opined that, while Cantrell's exposure to extreme cold and heat,
wetness, humidity, noise, and fumes, odors, gases, and poor ventilation did not need to be
limited, she should avoid concentrated exposure to vibration and hazards (machine1y, heights,
etc.) due to possible adverse effects of her medications. (Tr. 356). Based on her review of
Cantrell's records, including Dr. Maloney's report, Dr. Jensen diagnosed Cantrell with the
medically dete1minable impairments of diabetes mellitus, fibromyalgia, and hype1ihyroidism,
and found it "reasonable to assess [Cantrell] as being able to perform light RFC from [Januaiy !,
2003] to current." (Tr. 359).
On December 4, 2009, the Administration denied Cantrell's SSI and DIB applications,
finding her not disabled for purposes of the Act.
On Janumy 13, 2010, Cantrell met with Potampa to follow up on lab work. In the
progress note from that appointment, Potampa wrote that Cantrell had asked her to "provide her
with a letter stating that she has been diagnosed with neuropathy." (Tr. 367). Potampa opined in
that connection that Cantrell was "building a file ... for social security disability. She has had
one in denial, but states that she is 'continuing to build a file."' (Tr. 367).
On February 17, 2010, Cantrell filed a request for reconsideration of the Administration's
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adverse decision. (Tr. 98-99). On July 12, 2010, Disability Dete1mination Services ("DDS")
refe1Ted Cantrell to psychological consultative examiner William Trueblood, Ph.D., for
psychodiagnostic examination. (Tr. 402-410). Dr. Trueblood interviewed Cantrell, perf01med a
mental status examination, and reviewed her prior medical records. Dr. Trueblood opined that
"[p]sychodiagnostic examination of Barbara Cantrell yields a history that reflects long-term
depression, which is consistent with diagnosis ofDysthymia," and assessed Cantrell a Global
Assessment of Functioning ("GAF") score of 55. (Tr. 407, 409).
On July 22, 2010, Administration psychological consultant Sandra Lundblad, Psy.D.,
relied upon a Psychiatric Review Technique ("PRT") to assess Cantrell's mental residual
functional capacity during the period from June 22, 2009 to July 20, 2010. (Tr. 411-424); Dr.
Lundblad classified Cantrell's mental health symptoms as falling under Administration listings
12.04 (Affective Disorders) and 12.06 (Anxiety-Related Disorders). (Tr. 411). Dr. Lundblad
characterized Cantrell's impairments as dysthymia under Affective Disorders, and Anxiety
Disorder, NOS under Anxiety-Related Disorders (Tr. 414, 416), but determined that her
dysthymia and anxiety were "Not Severe." (Tr. 411 ). Under a degree of limitation scale
consisting of none, mild, moderate, marked, and extreme (with only the degrees marked and
extreme satisfying the functional criterion), Dr. Lundblad found that, in connection with her
Affective Disorder or Anxiety-Related Disorder, Cantrell had mild "restriction of activities of
daily living," mild "difficulties in maintaining social functioning," mild "difficulties in
maintaining concentration, persistence, or pace," and no "episodes of decompensation of an
extended duration." (Tr. 421 ). Dr. Lundblad lastly determined that the evidence did not
establish the presence of the "C" criteria in connection with either Affective Disorders or
Anxiety-Related Disorders. (Tr. 422).
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On July 26, 2010, Administration medical consultant Neal Berner, M.D., re-assessed
Cantrell's physical residual functional capacity. After reviewing Cantrell's medical records and
finding "no new or material evidence to support a change in determination," Dr. Berner affirmed
Dr. Jensen's prior conclusion that Cantrell was capable of performing a light RFC. (Tr. 425).
On July 29, 2010, upon reconsideration, the Administration again denied Cantrell's SSI and DIB
applications, finding her not disabled for purposes of the Act. (Tr. 98-99).
On August 11, 2011, Cantrell met again with Potampa to review some lab work. (Tr.
472-474). In her progress note from that appointment, Potampa wrote that Cantrell "inquir[ed]
about receiving a note of medical necessity for a cane that she uses on an a[ s] needed basis
[bcause] her attorney has told her that a medical order for a cane that she is using would add
credibility to her case." (Tr. 472).
In or around October 2010, Cantrell went on a one-month camping and hunting trip with
her family. (Tr. 83-84).
On March 17, 2011, Cantrell met with Mark Belza, M.D., at The Center for Orthopedics
and Neurosurge1y (the "Center"). (Tr. 432-435). Cantrell complained of low back pain and left
leg pain, and Dr. Belza found "no focal tenderness" in Cantrell's spine. (Tr. 434).
On September 29, 2011, Cantrell amended her alleged disability onset date from Janumy
1, 2001 to June 29, 2009, and withdrew her DIB claim. (Tr. 155). On November 9, 2011, a
hearing in connection with Cantrell's SSI application was held before an Administrative Law
Judge, at which Cantrell's attorney and a vocational expe1t attended. (Tr. 36-95). During the
hearing, Cantrell confomed the amendment of her alleged disability onset date and the
withdrawal of her DIB claim. On December 28, 2011, the ALJ issued a decision finding
Cantrell not disabled for purposes of her SSI application. (Tr. 21-30). The Appeals Council
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denied Cantrell's request for review of the ALJ's decision on April 2, 2013. In consequence, the
ALJ's decision became the final decision of the Commissioner. 20 C.F.R. 404.981, 416.1481.
This action for judicial review of the Commissioner's final decision followed.
SUMMARY OF ALJ FINDINGS
The ALJ issued a decision finding Cantrell not disabled for purposes of her application
for benefits on December 28, 2011. (Tr. 21-30). At the first step of the five-step sequential
evaluation process, the ALJ found that Cantrell had not engaged in substantial gainful activity at
any time following her amended alleged onset date of June 29, 2009. (Tr. 23). He therefore
proceeded to the second step of the analysis.
At the second step, the ALJ found that Cantrell's fibromyalgia, diabetes mellitus,
degenerative disc disease of the lower spine, and bilateral hand and finger pain were "severe
impairments" for purposes of the Act. (Tr. 24). In light of that finding, the ALJ properly
proceeded to the third step of the analysis.
At the third step, the ALJ found that none of Cantrell's impai1ments was the equivalent of
any of the impairments enumerated in 20 C.F.R. 404, subpt P, app. 1. (Tr. 25). The ALJ
therefore properly conducted an assessment of Cantrell's RFC. (Tr. 25-29). Specifically, the
ALJ found that during the relevant adjudication period, Cantrell had:
[T]he residual functional capacity to perform light work as defined in 20 CFR
416.967(b) except that the claimant can perform postural activities occasionally,
can never climb ladders, ropes, or scaffolds, can occasionally climb stairs, cannot
be exposed to vibrations, cannot be exposed to extreme temperatures, cannot be
exposed to humidity, and cannot work around heights or hazards.
(Tr. 25). In reaching this finding, the ALJ "considered all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the objective medical evidence
and other evidence," including lay opinion evidence. (Tr. 25).
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At the fourth step, the ALJ found Cantrell capable of perfonning her past relevant work
as a self-service store attendant and a receptionist, based on his detetmination that these jobs did
"not require the perfotmance of work-related activities precluded by [Cantrell's] residual
functional capacity." (Tr. 29, citing 20 C.F.R. 416.965). The ALJ reached this dete1mination
based on the vocational expert's testimony "that a hypothetical claimant with [Cantrell's] residual
functional capacity and vocational profile would be able to perfonn [her] past relevant work" as
a self-service store attendant and a receptionist. (Tr. 29).
Based on his finding that Cantrell was capable of perfonning some of her past relevant
work, the ALJ concluded that she was not disabled for purposes of the Act at any time between
June 29, 2009, and December 28, 2011. (Tr. 30). As noted above, the ALJ's decision became
the Commissioner's final decision on April 2, 2013.
ANALYSIS
Cantrell challenges the Commissioner's determination that her testimony regarding the
severity of her symptoms and impairments was not credible, adoption of Dr. Lundblad's opinion
and decision to accord less weight to Dr. Trueblood's opinion, adoption of Dr. Jensen's opinion
and decision to accord limited weight to Dr. Maloney's opinion, detetmination that Cantrell's
dysthymia was not a severe impairment at step two of the five-step evaluation process, and
. failure to fully credit a third-party lay witness statement.
I.
The ALJ's Credibility Determination Regarding Cantrell's Testimony
Cantrell argues that the ALJ erred in detetmining that her testimony regarding the
severity of her symptoms and impairments was not entirely credible (Pl.'s Br. 8-11, Tr. 28-29)
because he "did not offer a clear and convincing reason for the rejection of [her] credibility and
.testimony about her impairments and their limiting effects." (Pl.'s Br. 11 ).
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II
Since she filed her initial applications in 2009, Cantrell has testified about her pain and
limitations on several occasions. On July 24, 2009, Cantrell filled out a Function Report - Adult
(Fonn SSA-3373), in which she complained of fatigue, occasional inability to sleep, chronic
pain, memory problems, and vision problems. (Tr. 221-228). She stated that she was able to lift
20 pounds "much of the time," walk 0.25 miles on a good day before needing to rest for ten to
fifteen minutes or longer, and that "squatting, bending, standing, walking, sitting, [and] kneeling
[we]re ve1y painful." (Tr. 226). Cantrell also stated that she could not work outside as often as
formerly due to pain and tiredness, and that her vision problems made it difficult to read or sew.
(Tr. 225).
In the summer of2009, Cantrell filled out a Disability Repmi - Adult (Form SSA-3368),
in which she stated, "I should not drive because of my vision, tired all the time, in pain all the
time, there are days that I just could not do any work." (Tr. 198). Similarly, in an undated
response to a DDS Pain & Fatigue Questionnaire, Cantrell stated that she had "aching" pain
"eve1ywhere" that was "always present," that she could only be up and active for one to two
hours before she required rest, and that she usually required daily naps lasting two to four hours,
although if she had a lot of company or was too active during a day, she would "need to sleep the
whole next day." (Tr. 229).
During the November 9, 2011, hearing before the ALJ (Tr. 36-95), Cantrell testified that
she "can't sit or stand for very long" (Tr. 58), or not longer than approximately 30 minutes. (Tr.
63-64). She stated that she needs to sit in an office chair to sweep and mop, and can only do
dishes standing for fifteen minutes before needing to rest due to leg and back pain. (Tr. 70-71 ).
If a claimant provides objective medical evidence of an underlying impainnent that could
reasonably be expected to produce the symptoms alleged and no affomative evidence of
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malingering exists, "the ALJ can reject the claimant's testimony about the severity of ...
symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v.
Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996); see also Carmickle v. Comm'r, Soc. Sec. Admin.,
533 F.3d 1155, 1160 (9th Cir. 2008); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986);
SSR 96-7p, 1996 WL 374186 (July 2, 1996). A general assertion that the claimant is not
credible is insufficient to meet this burden; the ALJ must "state which ... testimony is not
credible and what evidence suggests the complaints are not credible." Dodrill v. Shala/a, 12
F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the
reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony."
Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir. 1995) (citation omitted). If, however, the "ALJ's
credibility finding is supported by substantial evidence in the record, [the court] may not engage
in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).
In making a credibility determination, the ALJ should consider objective medical evidence, the
claimant's treatment history, daily activities, and work record, and the observations of treating
sources and third parties with personal knowledge of the claimant's functional limitations. See
20 C.F.R. 404.1529; see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008);
Smolen, 80 F.3d at 1284; SSR 96-7p.
A.
Evidence of File-Building
In support of his determination that Cantrell's testimony regarding the severity of her
symptoms and impairments was not credible, the ALJ relied in part on the foredescribed
evidence of Cantrell's requests for written medical notes or prescriptions from Potampa. On
Janumy 13, 2010, Potampa recorded a note indicating that Cantrell's request for a letter stating
that she had been diagnosed with neuropathy as motivated by her desire to "build a file," and on
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August 11, 2011, Potampa recorded a note indicating that Cantrell requested a "note of medical
necessity" for a cane she already used on an as-needed basis because "her attorney has told her
that a medical order for a cane that she is using would add credibility to her case." (Tr. 367, Tr.
472). The ALJ inte1preted Cantrell's requests as improper attempts to bolster her case as she
prepared to re-apply for Social Security benefits.
The ALJ opined that Cantrell's apparent "preoccupation with building a file for Social
Security tend[ed] to point to a motivation of secondmy gain." (Tr. 28, 28-29, citing Tr. 367368). Similarly, the ALJ opined, in light of Potampa's observation that, notwithstanding her
request for a note of medical necessity, Cantrell was " [w]alking without aid [and] [ro]se[] and
walk[ed] with fluidity," (Tr. 472), Cantrell's request and the involvement of her attorney in her
efforts to obtain medical care "tend[ed] to confinn [Cantrell's] strong desire to build a file for the
purposes of obtaining Social Security disability benefits." (Tr. 29).
Cantrell argues that the ALJ erred in so opining. (Pl.'s Br. 8). While she "[a]dmittedly
... wanted to win her disability case," she contends that "[i]t was effoneous for the ALJ to reject
her credibility on the ground that she wanted to have the best possible case that she could. This
desire [wa]s in no way inconsistent with disability nor d[id] it conflict with her testimony." (Pl.'s
Br. 9). Cantrell further argues that the ALJ erroneously "rejected [her] credibility on the ground
that she sought a note of 'medical necessity for a cane.'" (Pl.'s Br. 9). Cantrell defended her note
of medical necessity request and its lack of bearing on her credibility, explaining:
She had previously purchased a cane and used it periodically for stability. The
ALJ did not undermine this periodic need to use the cane for stability. He
undermined [Cantrell's) credibility because she sought to get a prescription for a
cane which she already had and needed. This is akin to his rejection of
[Cantrell's) credibility on the ground that she wanted to have the strongest
possible disability case. This desire, again, to have the strongest possible
disability case is consistent with disability and does not conflict with her other
testimony.
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(Pl. 's Br. 9).
The ALJ's interpretation of Cantrell's requests was rational and supported by specific
reasons grounded in substantial evidence of record. The fact that an alternative, equally rational
interpretation could have been asserted does not imply that the ALJ failed to meet his burden to
supp01t his credibility determination. See Batson, 359 F.3d at 1198 (cou1t must uphold an ALJ's
rational interpretation of the evidence). In consequence, Cantrell's requests for medical
documentation for the purpose of bolstering her application for benefits provide a legitimate
basis for the ALJ's determination regarding her credibility.
B.
Activities and Conduct
In fmiher suppo1t of his assessment of Cantrell's credibility, the ALJ relied on evidence
of record suggesting inconsistencies between Cantrell's alleged limitations and both her reported
daily activities and her one-month hunting trip of October 2010. As detailed above, Cantrell
testified that she cannot sit or stand for more than thirty minutes, can perform various household
chores only if she takes rest breaks, usually eve1y fifteen to thhty minutes, has poor vision that
limits her ability to drive, read, and sew, experiences fatigue that requires daily naps of two to
four hours, suffers from pain "everywhere" that was "always present," and is "tired all the time
[and] in pain all the time." Cantrell reported that on a daily basis she cooked multiple meals for
herself and her housemate, and cleaned their three-bedroom, two-bathroom house, which
generally meant vacuuming, wiping down counters, doing dishes in fifteen-minute increments,
sweeping and mopping in an office chair, and yard work. All of these activities were rep01tedly
limited by Cantrell's need to rest, the frequency and regularity of which depended on how she
was feeling on a particular day. (Tr. 221-228). Along with these household chores, Cantrell
reported that she eajoyed playing with her grandchildren, sewing, reading, working in her yard,
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and watching television, though she stated her ability to enjoy these activities was limited by her
pain and visual impairment. (Tr. 221-228).
Based on Cantrell's daily activities, the ALJ determined that Cantrell's "fairly notmal
activities of daily living [were] not consistent with allegations of debility." (Tr. 29). Cantrell
argues that "[t]he ALJ en"oneously relied upon [her daily] activities to reject her credibility."
(Pl. 's Br. 9). While she does not deny actually performing these activities and chores, Cantrell
disputes the ALJ's characterization of them, contending that "the ALJ did not address the limited
nature of [her] daily activities or whether such activities were transferable to the work place. He
ignored the qualifying evidence which was not in dispute that she had to lie down between tasks
and could only perform tasks for short periods" of time. (Pl.'s Br. 10). Cantrell argues that, had
the ALJ considered "the umefuted testimony that chores were performed sporadically and were
punctuated by periods ofrecumbency," her daily activities would not have been proper evidence
for challenging her credibility. (Pl.'s Br. 10).
Inconsistencies in a claimant's testimony, including those between daily activities and the
alleged symptoms, can serve as a basis for discrediting it. See Burch v. Barnhart, 400 F.3d 676,
680 (9th Cir. 2005); see also Tommasetti, 533 F.3d at 1040; lvfo/ina v. Astrue, 674 F.3d 1104,
1113 (9th Cir. 2012) (ALJ may discredit a claimant's testimony when he reports activities of
daily living that "indicat[e] capacities that are transferable to a work setting" or "contradict
claims of a totally debilitating impairment") (citations omitted).
In }viorgan v. Co111111 1r ofSoc. Sec. Admin., the ALJ found that the claimant's "ability to
fix meals, do laundry, work in the yard, and occasionally care for his friend's child" was
evidence of his ability to work. 169 F.3d 595, 600 (9th Cir.1999). The Ninth Circuit explained:
If a claimant is able to spend a substantial part of his day engaged in pursuits
involving the perfotmance of physical functions that are transferable to a work
16
setting, a specific finding as to this fact may be sufficient to discredit a claimant's
allegations .... [T]he ALJ, in noting Morgan's daily activities, pointed to the
contradictions between Morgan's reported activities and his asse1ied limitations as
an issue of credibility.
Id, citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). On that basis, the Ninth Circuit
found that "the ALJ provided specific and substantial reasons that undermined Morgan's
credibility." Id
Here, the ALJ simply listed a number of Cantrell's daily chores and hobbies,
characterizing them as "fairly nmmal," and concluded that they "are not consistent with
allegations of debility." (Tr. 29). The ALJ did not analyze or discuss how Cantrell's daily
activities might be transferable to a work setting or point out any specific contradictions between
Cantrell's repo1ied activities and her asserted limitations. In the absence of any such analysis or
discussion, the ALJ did not meet his burden in discounting Cantrell's credibility based on
inconsistencies between her alleged limitations and her daily activities. I discuss the impmi and
consequences of the ALJ's failure below, in Section I(D), infra.
The ALJ noted that, in connection with her month-long camping and deer-hunting trip of
October 2010, that Cantrell "testified that she slept on a cot in a tent in the bushes, drove to the
camping area, and walked 50 yards to the creek to gather rocks." (Tr. 29). The ALJ found that
"[t]hese activities tend to cast doubt on [Cantrell's] allegation of debility." (Tr. 29). Cantrell
argues that the ALJ "erred by rejecting [her] credibility on the ground that she went camping."
(Pl. 's Br. 9-10).
In Tommasetti, "the ALJ doubted Tommasetti's testimony about the extent of his pain and
limitations based on his ability to travel to Venezuela for an extended time to care for an ailing
sister." 533 F.3d at 1040. The Ninth Circuit dete1mined that, although Tommasetti "had to see a
physician for exacerbation of his back pain while in Venezuela," "the ALJ "properly infer[red]
Page 17 - OPINION AND ORDER
17
from this fact that Tommasetti was not as physically limited as he purp01ied to be," and, as a
result, "[t]he ALJ's reasons for discounting Tommasetti's testimony [were] suppotied by
substantial evidence in the record." Id. at 1040, 1040 n. 3.
Here, as in Tommasetti, the ALJ determined that Cantrell's ability to take a one-month
deer hunting and camping trip was not consistent with her allegations of debility. (Tr. 29). The
ALJ's finding was both rational and suppotied by substantial evidence. In consequence,
evidence of Cantrell's camping trip provides a legitimate basis for the ALJ's credibility
determination.
C.
Inconsistent Allegations
In support of his assessment of Cantrell's credibility, the ALJ relied in further part
inconsistencies in Cantrell's testimony regarding the severity and extent of her pain and
impairment. The ALJ specifically found that, although Cantrell "complained of difficulty with
communication and focus ... she testified at the hearing cogently, relevantly, and without undue
delay." (Tr. 29). Cantrell argues that the ALJ "erroneously rejected her testimony about her
focus and concentration problems based on his expert assessment that she was cogent, relevant
and timely during the hearing." (Pl.'s Br. 10).
The Ninth Circuit has held that an ALJ's reliance on personal observations does not
render a decision based in pati on those observations improper. Sellard v. Shala/a, No. 9335626, 1994 WL 551505, at *3 (9th Cir. Oct. 6, 1994), citing Nyman v. Heckler, 779 F.2d 528,
531 (9th Cir.1985). ("Although it would have been an en·or for the ALJ to base his decision that
Sellard is capable of performing other work solely on observations made of Sellard at the
hearing, Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985), it was not error for the ALJ to
base its decision partially on observations made of Sellard at the hearing." Id. (emphasis
18
original)). Here, as in Sellard, the ALJ's pmiial reliance on personal observation provides no
grounds for disturbing the Commissioner's final decision.
The ALJ further noted that Cantrell "complained of pain everywhere that was always
present." (Tr. 29, citing Tr. 229) (emphasis added). The ALJ found Cantrell's asse1iion that she
suffered from ubiquitous, unrelenting pain "to be an overstatement in light of the evidence that
she did not have focal tenderness of the spine," referencing the report from Cantrell's March 17,
2011, appointment with Dr. Belza. (Tr. 29, citing Tr. 432-435).
Cantrell argues that, when she complained of pain "everywhere" (Tr. 229), while she
admittedly did not have "pain over every square inch of her body," it was clearly "not what she
intended to convey by indicating that she had pain 'everywhere."' (Pl.'s Br. 10). Cantrell
essentially argues that the ALJ's interpretation of the plain language of her testimony was overly
literal to the point of error.
An "ALJ is responsible for dete1mining credibility, resolving conflicts in medical
testimony, and for resolving ambiguities. The ALJ's findings, however, must be supp01ied by
specific, cogent reasons." Reddick, 157 F.3d at 722, citing Andrews v. Shala/a, 53 F.3d 1035,
1039 (9th Cir. 1995); Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). "Under the
Cotton test, a claimant who alleges disability based on subjective symptoms 'must produce
objective medical evidence of an underlying impairment 'which could reasonably be expected to
produce the pain or other symptoms alleged."" Smolen, 80 F.3d at 1281-1282, quoting Bunnell
v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991), citing Cotton, 799 F.2d at 1407-1409. If there is
no "affirmative evidence showing that the claimant is malingering, the ALJ's reasons for
rejecting pain testimony must be clear and convincing. The ALJ must specify what testimony is
not credible and identify the evidence that undermines the claimant's complaints - '[g]eneral
Page 19 - OPINION AND ORDER
19
findings are insufficient."' Burch, 400 F.3d at 680, citing Lester v. Chafer, 81F.3d821, 834 (9th
Cir.1995), quoting Reddick, 157 F.3d at 722.
The reasons given by the ALJ for finding Cantrell's testimony inconsistent regarding the
extent and severity of her pain symptoms are clear and convincing. The ALJ specified what
testimony was inconsistent and clearly identified the evidence that undermined Cantrell's
complaints. Furthermore, Cantrell admits that her pain testimony was inconsistent with her
actual pain symptoms, explaining that "[i]t cannot be argued that ... [she] has had constant pain
over eve1y square inch of her body." (Pl.'s Br. 10). Cantrell tried to clarify that "she was
attempting to convey that the pain [was] widespread and not that her entire body from the soles
of her feet to the top of her head and everything in between hurt all the time." (Pl. 's Br. 11 ).
Neve1iheless, Cantrell's statement was clearly inaccurate, and yet was offered as an accurate
statement of her limitations in support of her application for benefits. Because the ALJ's
interpretation of the inconsistencies between her statement and the medical evidence ofrecord
was reasonable and supp01ied by substantial evidence of record, his reliance on those
inconsistencies in support of his credibility determination was legitimate.
D.
Substantial Evidence Supporting Specific Reasons Adduced in Connection
with the ALJ's Credibility Determination
The ALJ offered five discrete reasons for determining that Cantrell's testimony regarding
the severity of her symptoms and impairments was not credible. As discussed above, of the
ALJ's five proffered reasons, only one was inadequately specific and inadequately suppo1ied by
evidence of record to constitute proper support for his ultimate credibility dete1mination: his
reliance on purported inconsistencies between Cantrell's reported daily activities and asserted
limitations. The ALJ's error in relying on those purported inconsistencies does not, however,
constitute grounds for disturbing the ALJ's adverse credibility determination.
20
The ALJ's adverse credibility determination may be upheld even if not all of the ALJ's
reasons for rejecting the claimant's testimony are upheld. Batson, 359 F.3d at 1197; Coleman v.
Astrue, No. 10-35286, 2011 WL 1058448, at *1 (9th Cir. Mar. 24, 2011) (although comi found
e!l'or in one credibility finding, substantial evidence remained to supp01i the ALJ's conclusions
on credibility, including claimant's failure to follow repeated medical recommendations that she
treat her pain with exercise and increased activity levels). As the Ninth Circuit explained:
Our decision in Batson makes clear that reviewing the ALJ's credibility
determination where the ALJ provides specific reasons supporting such is a
substantive analysis. So long as there remains "substantial evidence supporting
the ALJ's conclusions on ... credibility" and the e11'0r "does not negate the
validity of the ALJ's ultimate [credibility] conclusion," such is deemed hmmless
and does not wa!l'ant reversal. [Batson, 359 F.3d] at 1197; see also Stout, 454
F.3d at 1055 (defining harmless error as such en·or that is "inconsequential to the
ultimate nondisability determination").
Carmickle, 533 F.3d at 1162 (emphasis original). Here, as in Carmickle and Batson, the ALJ's
error in relying on purported but inadequately specified and supported inconsistencies between
Cantrell's reported daily activities and asserted limitations does not negate the ALJ's credibility
determination, which is otherwise supp01ied by a significant corpus of substantial evidence of
record. No grounds therefore exist for disturbing the ALJ's credibility determination and, in
consequence, Cantrell's assignment of error in that determination provides no grounds for
disturbing the Commissioner's final decision.
II.
Medical Opinions
Cantrell argues that the ALJ erred in purportedly rejecting examining physician Dr.
Trueblood's opinion that Cantrell had "severe" dysthymia and a GAF of 55 in favor of reviewing
physician Dr. Lundblad's opinion that Cantrell's dysthymia was not severe (and, in consequence,
in failing to find that Cantrell's dysthymia was "severe" at step two of the five-step sequential
Page 21 - OPINION AND ORDER
21
process), and in rejecting examining physician Dr. Maloney's opinion that Cantrell could only
perfo1m sedentmy work in favor of reviewing physician Dr. Jensen's contra1y opinion that she
could perform a range of light work. For purposes of the Act, distinction is made among the
medical opinions of treating, examining, and reviewing or consulting physicians. See Lester, 81
F.3d at 830. It is well established that, in connection with an application for Social Security
benefits, "a treating physician's opinion carries more weight than an examining physician's, and
an examining physician's opinion carries more weight than a reviewing physician's." Holohan v.
lvfassanari, 246 F.3d 1195, 1202 (9th Cir. 2001). To reject the uncontrove1ted opinion of a
treating or examining physician, the ALJ must present clear and convincing reasons for doing so.
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005), citing Lester, 81 F.3d at 830-831. Ifa
treating or examining physician's opinion is in conflict with substantial medical evidence or with
another physician's opinion, however, it may be rejected by specific and legitimate reasons. Id
Moreover,
Rep01ts of consultative physicians ... may serve as substantial evidence .... A
fortiori, when it is an examining physician's opinion that the ALJ has rejected in
reliance on the testimony of a nonexamining advisor, rep01ts of the nonexamining
advisor need not be discounted and may serve as substantial evidence when they
are suppo1ted by other evidence in the record and are consistent with it.
Andrews, 53 F.3d at 1041 (emphasis original).
A.
Opinions of Drs. Trueblood and Lundblad
As noted above, Cantrell met with examining physician Dr. Trueblood for
psychodiagnostic examination on July 12, 2010. Cantrell complained offibromyalgia, memory
problems, "instability," and "some emotional distress and depression." (Tr. 403). She rep01ted
experiencing depression over the years, "having strong feelings of w01thlessness and guilt," but
also "obtaining pleasure, especially related to her grandchildren who are 'awesome.'" (Tr. 403-
22
404).
Dr. Trueblood observed that, during the examination, Cantrell's "affect was appropriate.
There was no obvious sadness or anxiety." (Tr. 407). "There were no evident disturbances in
attention, including that [she] was not distractible, she did not appear to lose her train of thought
at any point, and she was not tangential in expressing herself. No unusual fatigue was
observed." (Tr. 407).
After examination, analysis, and review, Dr. Trneblood concluded:
Psychodiagnostic examination of Barbara Cantrell yields a histo1y that reflects
long-te1m depression, which is consistent with diagnosis ofDysthymia. Current
status does not appear to involve symptoms that meet the criteria for diagnosis of
a Major Depressive Episode. The patient does report experiencing pleasure and
she denies having thoughts of suicide. The patient does appear to experience
some anxiety, such as in crowded stores, although she does also go into such
stores by herself. She has mild anxiety in cars. She very infrequently takes
medication for the anxiety. It appears fairly clear that the anxiety is mild in
degree overall, and the patient says this is significantly improved compared to the
past. Mild Generalized Social Phobia might be the closest diagnosis. Another
diagnostic consideration is Posttraumatic Stress Disorder (PTSD) based on
history of trauma that would plausibly cause PTSD. However, it does not appear
that the patient experiences symptoms that fulfill the criteria for diagnosis of
PTSD; in particular, this includes that she does not appear to experience
symptoms that involve re-experiencing the trauma such as via nightmares or
intrnsive recollections. I do not identify bases to diagnose any personality
disorder but there may be a long-term low social inclination that could be
diagnosed as mild avoidant or schizoid personality characteristics. I did consider
whether diagnosis of Attention Deficit Hyperactivity Disorder may be appropriate
but overall did not identify significant evidence for this diagnosis.
(Tr. 407). Dr. Trneblood ultimately diagnosed Cantrell with dysthymia, anxiety disorder NOSrnle out mild generalized social phobia, cognitive disorder NOS-provisional diagnosis, and a
GAF score of 55. (Tr. 409). I take judicial notice that the Diagnostic & Statistical lvfanual of
lvfental Disorders, characterizes a GAF score of 55 as reflecting "Moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social,
Page 23 - OPINION AND ORDER
23
occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). "2
On July 22, 2010, twelve days after Dr. Trueblood's examination, reviewing physician
Dr. Lundblad reviewed Cantrell's medical records and completed a PRT. (Tr. 411-424). Dr.
Lundblad opined that Cantrell suffered from both dysthymia and am::iety disorder, NOS, falling
under listings 12.04 (Affective Disorders) and 12.06 (Anxiety-Related Disorders), expressly
determining that each such impairment was "Not Severe." (Tr. 411, 414, 416). Cantrell takes
the position that Dr. Lundblad's diagnosis is inconsistent with Dr. Trueblood's, and that the ALJ
failed to meet his burden for purportedly rejecting Dr. Trueblood's opinion.
The primaiy flaw in Cantrell's argument stems from her fundamental mischaracterization
of Dr. Trueblood's opinion. Notwithstanding Cantrell's assertions to the contra1y, analysis of the
evidentiaiy record establishes that Dr. Trueblood did not expressly diagnose her with severe
dysthymia, and that although he opined that Cantrell might suffer from mild anxiety or social
phobia, he expressly further opined that her symptoms did not "meet the criteria for diagnosis of
a Major Depressive Episode" (Tr. 407). Moreover, although Cantrell infers from the GAF score
of 55 that Dr. Trueblood assigned her that he intended "severe" dysthymia when he made his
diagnosis, in fact, as noted above, a GAF score of 55 indicates the presence of only moderate
symptoms. Dr. Trueblood's opinion and diagnosis therefore do not provide support for Cantrell's
contention that the ALJ ened in adopting Dr. Lundblad's opinion.
In addition, the ALJ did not err in his patiial rejection of Dr. Trueblood's opinion. After
reviewing the findings of Dr. Trueblood and Dr. Lundblad and "the entire evidence of record,
including [Cantrell's] presentation and demeanor at the hearing," the ALJ expressly adopted Dr.
Lundblad's opinion and gave "less weight" to Dr. Trueblood's opinion, based on the ALJ's
finding that Cantrell's "many fairly normal activities of daily living are not consistent with a
2
Am. Psychiatric Ass'n, Diagnostic & Statistical 1Vfanual oflvlental Disorders 34 (4th ed. 2000).
24
Global Assessment of Functioning of 55." (Tr. 24). This constitutes a specific and legitimate
reason, supported by substantial evidence in the record, for the ALJ's determination.
Finally, because the ALJ did not err in adopting Dr. Lundblad's opinion that Cantrell's
dysthymia was not "severe" for purposes of the Act, it necessarily follows that the ALJ did not
err in so finding at step two of the five-step sequential process. In this connection, I note that
notwithstanding his step-two finding that Cantrell's dysthymia was not severe, the ALJ properly
and appropriately considered Cantrell's dysthymic symptoms in assessing her mental RFC. (See
Tr. 24-26, 307-346, 360-380, 402-410, 411-424, 425).
C.
Opinions ofDrs. Maloney and Jensen
As noted above, on October 15, 2009, Cantrell met with Dr. Maloney for a physical
disability examination. After making findings as to Cantrell's exe1iional, postmal, manipulative,
and environmental limitations, Dr. Maloney diagnosed Cantrell with fibromyalgia, diabetes
mellitus, and hypothyroidism. (Tr. 351). Based on these findings, the ALJ concluded, "Dr.
Maloney opined that [Cantrell] could perfmm a range of sedentaiy work." (Tr. 28).
On December 2, 2009, Dr. Jensen conducted a review of Cantrell's medical records and
completed an assessment of Cantrell's physical RFC. (Tr. 352-359). After making findings as to
Cantrell's exertional, postural, manipulative, visual, communicative, and environmental
limitations, Dr. Jensen also diagnosed Cantrell with fibromyalgia, diabetes mellitus, and
hypothyroidism. (Tr. 359). But, unlike Dr. Maloney, Dr. Jensen found Cantrell capable of
perfo1ming a range oflight work. (Tr. 28, 359).
There were a number of differences between the limitations found by Dr. Maloney and
Dr. Jensen. As Dr. Jensen explained:
Dr. Maloney assessed [Cantrell] as being able to lift/cany 20 [pounds]
occ[asionally]; 10 [pounds] freq[uently]; stand/walk 2/8hrs; sit 6/8hrs but must
Page 25 - OPINION AND ORDER
25
periodically alternate sitting and standing to relieve pain or discomfort; never
climb and occ[asionally] on all other postural; freq[uently] on all manipulatives
and avoid concentrated exposure [to] extreme cold and heat, vibration, and
hazards and avoid occasional exposure to noise and fumes.
(Tr. 358). In reaching her own opinion as to Cantrell's limitations, Dr. Jensen expressly rejected
Dr. Maloney's opinion on the asse1ied grounds that Dr. Maloney's conclusions "do[] not reflect
the objective findings in file or [Dr. Maloney's] own exam." (Tr. 358).
The ALJ expressly adopted Dr. Jensen's opinion because it was "consistent with the
overall evidence." (Tr. 28). In adopting Dr. Jensen's opinion and ultimate conclusion that
Cantrell could perform a range of light work, the ALJ accorded limited weight to Dr. Maloney's
opinion, citing Dr. Jensen's critique of Dr. Maloney's conclusions. (Tr. 358). The ALJ further
accorded limited weight to Dr. Maloney's opinion "because she did not have evidence postdating
her one-time evaluation. In paiiicular, [Caiitrell's] ability to go on a one-month hunting trip,
[Cantrell's] various activities of daily living, and [Cantrell's] ability to sit comfortably and walk
fluidly are not consistent with a limitation to sedentaiy work." (Tr. 28, citing Tr. 402-410, 472,
489-491). Finally, the ALJ noted in support of his determination that on July 26, 2010, Dr. Neal
E. Berner, M.D., performed a further review of Cantrell's medical records and expressly affomed
Dr. Jensen's conclusion because there was "no new or material evidence to support a change in
determination." (Tr. 425). The ALJ's reasons for adopting Dr. Jensen's opinion and for
affording limited weight to the opinion of Dr. Maloney are specific and legitimate, and
supported by substantial evidence of record. In consequence, the ALJ's treatment of the opinions
of Drs. Maloney and Jensen provide no grounds for disturbing the Commissioner's final
decision.
26
III.
Lay Witness Testimony
On July 21, 2009, as noted above, Cantrell's daughter Bushard submitted written
testimony in support of Cantrell's application, indicating that Cantrell sometimes needs to be
reminded to take medication, eat at lunch time, and pay bills. (Tr. 206-208). She testified that
Cantrell prepares meals eve1y day, the extent of which depend "on what she feels like that day,"
but that she does not make as many large meals as she used to because she tires quickly. (Tr.
207). Bushard testified that Cantrell did laundry, dishes, sweeping, mopping, and yard work, but
that these chores often take her longer to complete because she requires rest. (Tr. 207). Bushard
stated that Cantrell enjoys watching television, yard work, reading, sewing, and playing with her
grandchildren although she can generally only do yard work eve1y other day, cannot read or sew
as much as she used to, and cannot play with her grandchildren like she used to. (Tr. 207).
Bushard stated that Cantrell has no problem getting along with other people, and that Cantrell's
social activity has not changed due to her impairments. (Tr. 207). Lastly, Bushard stated that
Cantrell could only lift 20-25 pounds, experiences pain when squatting, kneeling, standing for
too long, and climbing stairs, can only walk 0.25 to 0.5 miles before needing to rest, and has
poor vision and short term memory. (Tr. 210).
An ALJ must consider the statements of non-medical sources in a position to observe a
claimant's symptoms and daily activities. Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009);
Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). Such lay witnesses are
competent to testify regarding the claimant's condition. Dodrill, 12 F.3d at 918. Lay testimony
as to the claimant's symptoms or how an impairment affects the ability to work cannot be
disregarded without comment. Nguyen v. Chafer, 100 F.3d 1462, 1467 (9th Cir. 1996). If the
Page 27 - OPINION AND ORDER
27
ALJ wishes to discount lay witness testimony, he must give reasons that are germane to the
witness. Id.; Bayliss, 427 F.2d at 1218; Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).
Notwithstanding Cantrell's assertion that the ALJ rejected Bushard's testimony, the ALJ
expressly opined that "Bushard's statement regarding [Cantrell's] activities of daily living is not
inconsistent" with his assessment of Cantrell's residual functional capacity. (Tr. 29). Moreover,
analysis ofBushard's testimony and of the ALJ's assessment of Cantrell's RFC establishes that
the ALJ's determination was correct: there is no material conflict between the limitations to
which Bushard testifies and the limitations set fmih in Cantrell's limited light RFC assessment.
Indeed, Cantrell does not identify with particularity any such conflict or even offer argument that
any such conflict is present. In the absence of any such conflict, Bushard's lay testimony
provides no grounds for disturbing the Commissioner's final decision.
CONCLUSION
For the foregoing reasons, the Commissioner's final decision is affirmed. A final
judgment shall be prepared.
Dated this 10th day of September, 201
Honorable Paul Papak
United States Magistrate Judge
28
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