Hudson v. Commissioner Social Security Administration

Filing 20

OPINION AND ORDER. Signed on 04/20/2015 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ISRAEL RAMONE HUDSON
Plaintiff,

v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
Defendant.
GEORGE J. WALT,
1336 E. Burnside St., Suite 130
Portland, OR 97214
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
RONALD K. SILVER
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204
Heather L. Griffith
Social Security Administration
Off ice of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant

1 - OPINION AND ORDER

Case No. 3:14-cv-00544-MA
OPINION AND ORIDER

MARSH, Judge
Plaintiff Israel Ramone Hudson seeks judicial review of the
final decision of the Commissioner of Social Security denying his
applications for Disability Insurance Benefits (DIB) under Title II
of the Social Security Act,

42 U.S.C

401-403 and Supplemental

§§

Security Income (SSI) disability benefits under Title XVI of the
Social

Security Act,

42

U.S.C.

jurisdiction pursuant to 42 U.S.C.
the

reasons

that

follow,

I

1381-1383f.

§§

affirm

Court

has

405(g) and 1383(c) (3).

§§

For

the

final

This

decision

of

the

Commissioner.
FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff protectively filed applications for DIB and SSI on
May 8,
chronic

2006,
pain

Plaintiff

alleging disability beginning May 31,
in

last

his

met

arm
the

as

well

insured

as

paranoia

status

2005,

and

due to

depression.

requirements

for

a

DIB

application on June 30, 2006.
On March 23,

2009, plaintiff appeared at a hearing with his

attorney and testified. Plaintiff's girlfriend, Quantisha Barber,
medical expert (ME) Robert H. Bigley, M.D., and vocational expert
(VE) Gail Young also testified. The ALJ held supplemental hearing
on May 26, 2009, at which plaintiff and Dr. Bigley testified. Paul
Morrison, VE also testified at this second hearing. The ALJ issued
an

unfavorable

decision

on

June

26,

2009.

Tr.

198.

Plaintiff

appealed to the Appeals Council, which granted review and issued a

2 - OPINION AND ORDER

January 29, 2010 order remanding the case to the ALJ. Tr. 211. At
a December 13, 2010 hearing, plaintiff appeared with his attorney
and testified. Tr. 86. David R. Rullman, M.D., ME and Carolyn Kay
Wise, VE, also appeared and testified. Subsequently, the ALJ issued
an un·favorable decision on December 20,
appealed,

2010. Tr.

214.

Plaintiff

and Appeals Council granted review and issued an order

again remanding the case to the ALJ on December 8, 2011.
On February 12, 2013, plaintiff appeared at a hearing with his
attorney and testified.

Tr.

36. William U.

Weiss,

Ph. D"

ME and

Jenipher Gaffney, VE, also testified. The ALJ issued a partiallyfavorable decision on February 28, 2013, finding plaintiff disabled
as

of

November

3,

2011.

Tr.

11.

The

Appeals

Council

denied

plaintiff's request for review, and therefore, the ALJ's February
28, 2013 decision became the final decision of the Commissioner for
purposes of review.
Born in 1981, plaintiff was 31 years old on the date of the
ALJ's adverse decision. Plaintiff has an eleventh grade education
level. Plaintiff has no past relevant work.
THE ALJ'S DISABILITY ANALYSIS

The

Commissioner

has

established

a

five-step

process for determining whether a person is disabled.
Yuckert,

482 U.S. 137, 140 (1987); 20 C.F.R.

§

sequential
Bowen v.

416.920. Each step

is potentially dispositive. The ciaimant bears the burden of proof
at steps one through four.

3 - OPINION AND ORDER

Valentine v.

Commissioner Soc. -Sec.

574 F.3d 685,

Achnin.,

689 (9th Cir. 2009); Tackett v. Apfe1, 180

F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to
the Commissioner to show that the claimant can do other work which
exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161
(9th Cir. 2012).
At step one, the ALJ found that plaintiff has not engaged in
substantial

gainful

activity

since

his

alleged

onset

date

of

disability, May 31, 2005. At step two, the ALJ found that as of May
31, 2005, plaintiff had the following severe impairments: morbid
obesity;

status-post

shooting;

gunshot

marijuana abuse;

wound

to

the

neck

and alcohol abuse.

1

from

a

2002

The ALJ further

found that as of November 3, 2011, plaintiff also had the severe
impairment of post-traumatic stress disorder (PTSD). At step three,
the ALJ found that from May 31,
plaintiff's impairments,

2005 through November 2,

or combination of impairments,

2011,

did not

meet or medically equal a listed impairment. The ALJ further found
that on November 3,
meets Listing 12.06
C.F.R.

Pt.

404,

2011,

plaintiff's severe impairment of PTSD

(Anxiety Related Disorders).

Subpt.

P,

App.

1,

§

12.06

Tr.

25-26;

20

(hereinafter Listing

12.06).
1

The ALJ was not entirely clear on whether he found
plaintiff's post-traumatic stress disorder severe at step two.
However, plaintiff does not challenge the ALJ's step two finding,
and the ALJ included mental limitations in the RFC finding. Tr.
20-21.

4 - OPINION AND ORDER

The ALJ assess.ed that from May 31, 2005 through November 2,
2011, plaintiff has a residual functional capacity (RFC) to perform
light work as defined in 20 C.F.R.

404.1567(b) and 416.967(b)

§§

except that he can lift and carry up to ten pounds frequently and
up to 20 pounds occasionally, and sit, stand, and walk up to six
hours

in each activity

(cumulatively,

not

consecutively)

normal eight-hour workday with normal breaks;
climb

stairs

complaints,

and

he

ramps,

cannot

but

climb

due
ropes,

to

his

ladders,

in

a

he can frequently
right

arm/shoulder

and

scaffolding.

Plaintiff can also occasionally balance, stoop, kneel, crouch, and
crawl.

Because of his

longstanding history of being prescribed

Vicodin, plaintiff is limited ·to simple routine work.
worsening

PTSD symptoms,

plaintiff is

Due to his

limited to work with no

contact with the general public and no close interaction with coworkers.
At step four,
work. At step five,

the ALJ found plaintiff has no past relevant
the ALJ concluded that prior to November 3,

2011, considering plaintiff's age, education, work experience, and
residual functional capacity, jobs exist in significant numbers in
the national

economy that plaintiff can perform,

such as

room

cleaner, laundry sorter, and bench assembler. Accordingly, the ALJ
concluded that plaintiff has not been under a disability under the
Social Security Act from May 31, 2005 through November 2, 2011. The
ALJ further found that beginning November 3, 2011, plaintiff's PTSD

5 - OPINION AND ORDER

meets the criteria of Listing 12.06. Thus, the ALJ concluded that
plaintiff has been under a disability under the Social Security Act
from November 3, 2011 through the date of the decision.
ISSUES ON REVIEW

On appeal to this court,
errors were committed:
plaintiff's testimony;

(1)

plaintiff contends

the following

the ALJ failed to properly evaluate

(2) the ALJ failed to properly evaluate the

opinion of examining physician Joseph Balsamo, Psy.D.; and (3) the
ALJ failed to properly evaluate the lay testimony of Quantisha
Barber.
STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if
the

Commissioner

applied

the

proper

legal

standards

and

findings are supported by substantial evidence in the record.
U.S.C.

§

405(g); Berry v.

Astrue,

622 F.3d 1228,

1231

the
42

(9th Cir.

2010). "Substantial evidence is more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Hill,

698

F.3d at 1159 (internal quotations omitted); Valent.i.ne, 574 F.3d at
690. The court must weigh all the evidence, whether it supports or
detracts from the Commissioner's decision. Martinez v. Heckler, 807
F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be
upheld,

even

if

the

evidence

is

susceptible

to more

than

one

rational interpretation. Batson v. Commissioner Soc. Sec. Admin.,
6 - OPINION AND ORDER

359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the
Commissioner's conclusion, the Commissioner must be affirmed; "the
court

may

substitute

not

its

judgment

for

that

of

the

Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001) .
DISCUSSION
I.

The ALJ Did Not Err in Evaluating Plaintiff's Credibility
A.

To

Standards

determine

whether

a

claimant's

testimony

regarding

subjective pain or symptoms is credible, an ALJ must perform two
stages of analysis.

20 C.F.R.

404.12629. The first stage is a

§

threshold test in which the claimant must produce objective medical
evidence of an

underlying

impairment

that

expected to produce the symptoms alleged.
F.3d 1104, 1112

(9th Cir.

2012);

could

reasonably be

Molina v.

Tommasetti v.

Astrue,

Astrue,

674

533 F.3d

1035, 1039 (9th Cir. 2008). At the second stage of the credibility
analysis, absent affirmative evidence of malingering, the ALJ must
provide

clear

claimant's

and

testimony

Carmickle v.

convincing
regarding

Commissioner Soc.

reasons
the
Sec.

for

severity
Admin.,

discrediting
of

the

the

symptoms.

533 F.3d 1155,

1161

(9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007).
The ALJ must make findings that are sufficiently specific to
permit· the

reviewing

7 - OPINION AND ORDER

court

to

conclude

that

the

ALJ did

not

arbitrarily discredit the claimant's testimony. Ghanim v. Colvin,
763 F.3d
Factors

1154, 1163 (9th Cir. 2014); 1'ommasetti, 533 F.3d at 1039.
the

ALJ

determinations
claimant's

may

consider

include

treatment

the

when

objective

history,

the

making

such

medical

claimant's

credibility

evidence,

daily

the

activities,

inconsistencies in testimony, effectiveness or adverse side effects
of any pain medication,

and relevant character evidence. Ghanim,

763 F.3d at 1163; Tommasetti,

533 F.3d at 1039.

B. Analysis

At the March 23,

2009 hearing,

plaintiff testified that he

experiences pain in his neck and right arm. Tr. 157-58. Plaintiff
testified that lifting and picking up objects with his right arm
irritates his arm, and he experiences a tingling feeling in his arm
and fingers. Tr. 158. Plaintiff also testified that he experiences
headaches approximately four times a week,

lasting 65 percent of

the day. Tr. 161. Plaintiff further testified that he experiences
a shooting pain down his right leg, which causes the whole right
side of his body to shut down.

Plaintiff stated that this pain

occurs twice a week and requires him to rest when it occurs. Tr.
162.
At the December 13, 2010 hearing, plaintiff testified that he
has trouble preparing meals for himself and is unable to fully use
his right arm when cooking.

Tr.

96-97.

Plaintiff also testified

that he has difficulty concentrating on a television program he has

8 - OPINION AND ORDER

watched.

Tr.

100-01.

Plaintiff testified that he has difficulty

carrying on conversations with people and is often distracted by
his pain and depression. Tr. 105-06. At the most recent hearing on
February 12, 2013, plaintiff testified that a typical day for him
consists of waking up and relying on his friend to drive him around
to complete his errands. Tr. 53.
In a September 5, 2006 Function Report, plaintiff indicated
that he has no difficulty with performing personal care such as
showering or dressing. Tr. 557. Plaintiff also noted that he goes
outside two to three times a week but that anytime he goes outside,
he experiences significant paranoia. Tr.

559.

Plaintiff reported

that he experiences pain after repetitively lifting 20 pounds and
feels lightheaded after standing for a prolonged period. Tr. 561.
Plaintiff noted that he can pay attention for a while and has no
difficulty

completing activities

such as

finishing

a

movie

or

that

he

completing conversations . .Id.
In

a

Pain

Questionnaire,

plaintiff

reported

experiences a constant pain in his neck, shoulder, chest and right
arm;

the pain increases with movement in his arms or prolonged

standing. Tr.

585.

Plaintiff further noted that he can tolerate

three to four hours of activity before needing to rest. Tr. 586.
In

the

decision,

the

ALJ

concluded

that

plaintiff

has

medically determinable impairments that cause symptoms resulting in
some limitations on work activity, but his subjective complaints

9 - OPINION AND ORDER

and alleged limitations are not fully credible prior to November 3,
2011. Tr. 21.
Contrary to plaintiff's assertion,
clear and convincing reasons,

the ALJ provided three

citing specific record evidence,

which undermine his subjective complaints. As discussed below, the
ALJ

also

provided

two

unconvincing

reasons

for

discrediting

plaintiff's allegations of pain. However, the other three reasons
adequately support the ALJ's credibility determination.
1. exaggeration of symptoms

The ALJ cited to
plaintiff
symptoms

is
is

Tonapetyan

evidence

exaggerating
an

v.

appropriate

Halter,

242

his

in

the

record

symptoms.

factor

in

F.3d 1144,

The

suggesting
exaggeration

determining
1148

that
of

credibility.

(9th Cir.

2001) (ALJ

appropriately discredited claimant's testimony on the basis of her
tendency to exaggerate) .
As

the

Okulitch,

ALJ

Ph.D.

examination

correctly
noted

that

in

plaintiff

psychological symptoms;

Dr.

discussed
an
was

in

October

his

19,

exaggerating

decision,

2006
his

Peter

consultative
physical

and

Okulitch also noted that plaintiff

might have financial incentives for such exaggeration. Tr. 22, 778.
For example,

Dr. Okulitch noted that he observed no evidence of

pain or discomfort in plaintiff's movements. Tr. 776. Dr. Okulitch
noted entirely normal examination findings including intact short
and

long-'term

memory,

10 - OPINION AND ORDER

an

ability

to

perform

serial

seven

calculations, and average stream of mental activity. Tr.

777.

In

fact, Dr. Okulitch assigned plaintiff a Global Assessment Function
(GAF) score of 65. 2
The

ALJ also

cited

to

the

October

examination by Christopher Komanapalli,

19,

M. D.,

2006

consultative

who reported poor

effort on the part of the plaintiff during the examination.
772.

Dr.

transfer

Tr.

Komanapalli observed that plaintiff was able to easily
from

a

chair

to

the

examination

table,

walk

to

the

examination room without difficulty, and sit comfortably. Tr. 772.
Specifically,

Dr.

Komanapalli

documented

normal

examination

findings and opined that plaintiff could perform medium level work.
Tr.

772-74.

Furthermore,

examination on February 7,

the

ALJ

noted

another

consultative

2007, by Duane D. Kolilis,

Ph.D., who

also noted a lack of pain behavior from plaintiff. Tr. 22, 816.
Moreover,

other evidence in the record further supports the

ALJ's finding of symptom exaggeration. For example, during a faceto-face interview for
security field office,

his disability application in the

social

the claims representative noted that he

observed no visible pain behavior from plaintiff and indicated that
2

The GAF scale is used to report a clinician's judgment of
the patient's overall level of functioning on a scale of l to
100. A GAF of 61-70 indicates some mild symptoms (e.g. depressed
mood or mild insomnia) or some difficulty in social,
occupational, or school functioning (e.g., occasional truancy, or
theft within the household), but generally functioning pretty
well, has some meaningful interpersonal relationships. Diagnostic
and Statistical Manual of Mental Disorders IV (DSM-IV), p. 31-34
(4th ed. 2000).
11 - OPINION AND ORDER

plaintiff moved both arms and his neck and walked without

any

difficulty. Tr. 547. The interviewer further noted that plaintiff
reported that his doctor stated that plaintiff would "probably be
paralyzed in about a month." Id.

Indeed,

in a November 14,

Psychiatric Review Technique assessment,
Dorothy

Anderson,

Ph.D.,

referred

to

2006

nonexamining physician,

plaintiff's

field

office

interview as evidence that plaintiff is not entirely credible. Tr.
793.

The

ALJ' s

finding

of plaintiff's

symptom exaggeration is

supported by substantial evidence in the record. Thus, I conclude
that the ALJ appropriately discredited plaintiff on this basis.
2. activities of daily living

As the ALJ correctly noted, plaintiff's variety of activities
of daily living are inconsistent with the level of disability he
alleges.

For example,

the ALJ noted that plaintiff described a

typical day as involving waking up,

getting ready and going out

with his friend to complete errands. Tr. 22, 53. The ALJ also noted
that

plaintiff

sits

out

on

his

porch

on

a

daily

basis

and

occasionally goes to a park for a picnic or goes out to lunch. The
ALJ stated that

Dr.

Kolilis

opined that

these activities were

inconsistent with plaintiff's allegations of significant paranoia
to the point that he alleged a fear of leaving his house. Tr. 19,
99, 814-815. Plaintiff also alleged significant pain in his right
arm,

shoulder

and

neck.

Tr.

585-86.

Yet,

the

ALJ

noted

that

plaintiff participated in community service and clean-up at PGE

12 - OPINION AND ORDER

Park after games. Tr. 23, 873, 968. Indeed, plaintiff reported to
his

treating

physician

that

his

community

service

involved

gardening and yard work. Tr. 873.
While a claimant need not be completely incapacitated to be
eligible for disability,
activities

are

fairly

here the record shows that plaintiff's

extensive.

As

the

ALJ correctly

stated,

plaintiff's own functioning does not support the frequency, nature,
and severity of his alleged pain and limitations.

For example,

plaintiff testified at the 2010 hearing that he has difficulty
concentrating, but a September 2010 treatment note indicated that
plaintiff is attending school three full days a week to obtain his
General Education Degree
2006

Function

Report,

(GED). Tr.

plaintiff

812,

865.

reported

In a September 5,

that

he

is

able

to

complete activities that he starts such as watching a movie or
completing household chores. Tr. 561. Plaintiff also indicated that
he has no significant problems with following written or spoken
instructions.

Id.

Daily activities demonstrating the ability to

concentrate and finish tasks

indicates a

"capacity

that

[is]

transferable to a work setting." Mo.Una, 674 F.3d at 1113.
Based on this significant evidence in the record, I conclude
that the ALJ properly discredited plaintiff's testimony because his
level of activity is inconsistent with the degree of impairment
that

he alleges.

See

13 - OPINION AND ORDER

Berry,

622

F. 3d at

1235

(inconsistencies

between self-reported symptoms and activities supported adverse
credibility finding).
3. non-responsive and vague testimony

The ALJ cited to plaintiff's inconsistent and vague statements
at the hearing and in the medical record as a reason to discount
his

credibility.

Tr.

22,

57,

1012.

An ALJ may

consider prior

inconsistent statements concerning symptoms and "other testimony by
[plaintiff) that appears less than candid in weighing plaintiff's
credibility." Tommasetti, 533 F.3d at 1039. Plaintiff argues that
the ALJ mischaracterizes the evidence to support his reasoning. I
agree.
Contrary

to

the

ALJ's

finding,

plaintiff

answered

all

questions at the February 2013 hearing. Specifically, the ALJ noted
that plaintiff did not answer a question posed by the ALJ relating
to the size of plaintiff's arms, but the hearing transcript does
not support the ALJ's reasoning:
Q:

(ALJ questioning) Okay, I'm looking at your arms
and your arm muscles are bigger around probably,
your upper arms, than my thighs. So what are you
doing to keep your arms that big?

A:

I'm not doing anything.

Q:

Tell me.

A:

I mean, I don't work out or nothing, so I don't --

Q:
Okay.
Tr. 21, 48.

14 - OPINION AND ORDER

It is clear from the hearing transcript that plaintiff answered the
ALJ's question. The ALJ's reasoning of plaintiff's allegedly vague
and non-responsive behavior is erroneous and unsupported.
4. inconsistent statements

The ALJ appropriately discredited plaintiff's testimony on the
basis

of

marijuana

inconsistent
use.

As

the

statements

regarding

ALJ reported,

at

the

his

alcohol

February 12,

and
2013

hearing, plaintiff testified that he stopped drinking alcohol and
smoking marijuana in 2009. Tr. 57. The ALJ then noted that a May 5,
2012 treatment' note indicated that plaintiff acknowledged that he
drinks alcohol. Tr. 22, 1012.
The record further supports the ALJ' s reasoning. Specifically,
plaintiff testified at the May 26,

2009 hearing that he smokes

marijuana four times a week, yet plaintiff reported to Dr. Kolilis
that he only smokes one to two times a week. Tr. 812. In fact, Dr.
Kolilis diagnosed plaintiff with cannabis dependence.
Plaintiff also reported to
alcohol." Tr.
occasional

812.

Dr.

In contrast,

consumption

of

Kolilis

that

he

Tr.

815.

"never touched

plaintiff testified to at least

alcohol

at

the

2013

hearing

and

in

reports to multiple consultative examiners. Tr. 57, 771, 776, 808,
1012.

The ALJ's

findings

are

supported by the record.

Thus,

I

conclude that the ALJ appropriately discredited plaintiff on the
basis of inconsistent statements.

15 - OPINION AND ORDER

5. failure to seek treatment

An

or inadequately explained, failure to seek

~unexplained,

treatment" may be the basis for an adverse credibility finding.
Fair v.

Bo1ven,

885 F.2d 597, 603 (9th Cir. 1989). However, lack of

medical treatment due to an inability to afford medical treatment
does

not

support

an

adverse

credibility determination.

Orn

v.

Astrue, 495 F.3d 625, 638 (9th Cir. 2007). Here, the ALJ cites to

plaintiff's

lack of mental

health

treatment

despite

endorsing

symptoms of PTSD. Tr. 22. The ALJ noted that plaintiff did not seek
mental health treatment from May 31, 2005, the alleged onset date
of

disability,

through

November

2,

2011.

Tr.

22.

The

ALJ's

reasoning is not supported by substantial evidence in the record.
As plaintiff correctly contends, the ALJ erroneously concluded
that plaintiff never sought any treatment for his PTSD until July
2011.

Tr.

18.

prescribed

The medical

Fluoxetine

Casey-Ford,
plaintiff

M.D.
was

record indicates that plaintiff was

in May 2010 by

(Tr.

883).

receiving

Dr.

counseling

treating physician,

Casey-Ford
through

also
a

noted

program

at

Gwen
that
the

shelter. The medical evidence indicates that plaintiff continued to
receive treatment for PTSD and depression on a consistent basis
from May

2010

through

July

2012.

Tr.

936-999,

1048-107 4.

For

example,

in March 2012,

plaintiff's therapist noted symptoms of

paranoia

and

the

increased

medication.

16 - OPINION AND ORDER

dosage

of

Saphris,

a

psychiatric

Plaintiff further argues that his lack of medical insurance
for most

of the

relevant period adequately explains a

lack of

mental health treatment. I disagree.
The evidence in the record is ambiguous regarding plaintiff's
health

insurance

status

for

the

relevant

period.

A June

2004

emergency room treatment note indicated that plaintiff was covered
under an Aetna health insurance plan through his father. Tr. 751.
In a December 5, 2010 treatment note, Dr. Casey-Ford indicated that
plaintiff is without resources to pay for Cymbalta but can apply
for the Lily Cares program.

Tr.

963.

At the

February 12,

2013

hearing, plaintiff testified that he was on the Oregon Health plan
but that his medical coverage was suspended in 2012. Tr.

44,

58.

Plaintiff further testified at the 2013 hearing that he was still
receiving pain medications

from the Old Town clinic;

plaintiff

indicated that he was borrowing money from friends to pay for the
medications. Tr. 58. Based on plaintiff's own testimony, it appears
that plaintiff had health insurance coverage prior to 2012, but the
record is unclear as to whether plaintiff had coverage for the
entire period from 2005 to 2012. Because of the ambiguity in the
record, I conclude that the ALJ's reason that plaintiff failed to
seek medical treatment as a basis to discount plaintiff's testimony
is not supported by substantial evidence.
In conc,lusion, although the ALJ' s credibility reasoning does
contain

two

errors,

these

17 - OPINION AND ORDER

errors

do

not

invalidate

the

ALJ' s

overall adverse credibility finding. The ALJ 1 s remaining reasons,
when

taken

supported

together,
by

testimony.

constitute

substantial

Therefore,
"So

harmless.

I

long

clear

as

to

evidence
conclude
there

and

that

remains

convincing

discount
the

plaintiff's

ALJ's

errors

'substantial

supporting the ALJ's conclusions on ... credibility'

reasons,

are

evidence

and the error

'does not negate the validity of the ALJ's ultimate [credibility]
conclusion,' such [error] is deemed harmless and does not warrant
reversal." Carmickle, 533 F. 3d at 1162 (quoting Batson, 359 F. 3d at
1195-97); Stout v. Commissioner Soc.

454 F.3d 1050,

Sec. Admin.,

1055 (9th Cir. 2006).
II.

The ALJ Did Not Err in Crediting Dr. Weiss's Opinion over Dr.
Balsamo's Opinion

In general, the opinion of a treating physician is given more
weight than the opinion of an examining physician, and the opinion
of an examining physician is afforded more weight than the opinion
of a nonexamining physician.
F.3d at 632.
by

evidence
weight."

acceptable

and

in

is

[the]

Orn,

not

the

clinical

495

F. 3d

Orn,

495

at

uncontroverted

opinion

laboratory

631

the

other

substantial

be given]

controlling
quotations

20 C.F.R.
of

diagnostic

(internal

[it will

in original);

18 - OPINION AND ORDER

and

inconsistent with

case record,

omitted)(alterations
reject

763 F. 3d at 1160;

"If a treating physician's opinion is well-supported

medically

techniques

Ghanim,

a

§

404.1527(c).

treating

or

To

examining

physician,

the ALJ must

present

clear and convincing reasons.

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

If a treating or examining physician's opinion is contradicted
by another physician's opinion, it may be rejected by specific and
legitimate reasons. Tonapetyan, 242 F.3d at 1148. When evaluating
conflicting opinions, an ALJ is not required to accept an opinion
that

is

not

supported

by

clinical

findings,

or

is

brief

or

conclusory. Id. at 1149.
Plaintiff argues that the ALJ failed to discuss and provide
specific and legitimate reasons for discounting the opinion of
examining

physician,

Joseph

Balsamo,

plaintiff's onset date of disability.
Balsamo

examined

plaintiff

in

Psy.D.

with

respect

On November 3,

connection

with

2011,

his

to
Dr.

current

disability application. Dr. Balsamo noted that plaintiff appeared
notably anxious and mildly depressed and exhibited a limited range
of emotional expression.

Tr.

927.

Dr.

Balsamo also noted that

plaintiff demonstrated impaired short-term and working memory, an
average

to

low

average

fund

of

general

knowledge,

and

intact

attention and concentration. Id. Plaintiff reported to Dr. Balsamo
that the man who shot him was recently released from prison and had
returned to the community, and Dr. Balsamo opined that this further

19 - OPINION AND ORDER

contributed to his ongoing anxiety. Tr. 924. Dr. Balsamo diagnosed
plaintiff with PTSD and assessed a GAF of 41. 3
In his examination report,

Dr.

Balsamo provided a detailed

opinion regarding plaintiff's mental functioning. Specifically, Dr.
Balsamo opined that plaintiff's "greatest challenge lies in his
inability to tolerate a normal level of social interaction.ff Tr.
930. Dr. Balsamo also opined that plaintiff's symptomatic reactions
in

social

situations

markedly

interfere

with

his

ability

to

interact with supervisors, coworkers or the general public. Id. Dr.
Balsamo opined that plaintiff's symptoms and significant social
limitations have existed since 2002.
In finding that plaintiff meets the criteria of Listing 12.06,
the ALJ agreed with Dr. Balsamo's examination findings and opinion
that plaintiff had significant mental limitations and assigned this
opinion "great weight.ff Tr. 26-27. However, the ALJ also relied on
the February 12,

2013 hearing testimony of the medical expert,

William Weiss, Ph.D., who opined that plaintiff met the criteria of
Listing 12. 06 as of November 3, 2011.
Because Dr. Balsamo's opinion was contradicted,
required to provide specific and legitimate reasons,

the ALJ was
backed by

substantial evidence, to reject his opinion. Bayliss, 427 F.3d at
3

A GAF of 41-50 indicates serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or
any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job). DSM-IV at
32.
20 - OPINION AND ORDER

1216. In adopting Dr. Weiss's opinion of an onset date of November
3, 2011, the ALJ rejected Dr. Balsamo's onset date of 2002 because
Dr.

Weiss's

opinion

is

evidence in the record.
conclude

that

the ALJ' s

consistent

with

the

objective

medical

Having carefully reviewed the record,
reasoning

is

supported by

I

substantial

evidence.
At the February 12,

2013 hearing,

opined that plaintiff met the

Dr.

Weiss testified and

criteria of Listing 12. 06,

with

marked limitations in maintaining concentration, persistence, and
pace and social functioning as of November 3, 2011. Tr. 69-70. Dr.
Weiss testified that prior to November 3, 2011, the record does not
support a

finding that plaintiff's mental

impairments meet the

criteria of Listing 12.06. Tr. 71. Dr. Weiss opined that prior to
November 3, 2011, plaintiff had mild limitations in activities of
daily living and moderate difficulty in maintaining concentration,
persistence, and pace, and social functioning. Tr. 72. In support
of his opinion, Dr. Weiss noted that plaintiff did not seek mental
health

treatment

until

May

2010

and

that

prior

consultative

examinations in 2006 and 2007 did not document significant mental
limitations. Tr. 68-71.
Contrary to plaintiff's argument, the ALJ provided a detailed
discussion of the medical evidence and concluded that the objective
medical evidence supports Dr. Weiss's opinion that plaintiff does
not meet Listing 12. 06 prior to November 3, 2011. As the ALJ noted,

21 - OPINION AND ORDER

plaintiff did not seek mental health treatment until four years
after applying for disability in 2006.

Tr.

18.

Plaintiff first

established care for mental health treatment in May 2010; in a May
24, 2010 treatment note, Dr. Ford diagnosed depressive disorder and
prescribed Fluoxetine, an anti-depressant. Tr. 989-999. Beginning
in 2011, plaintiff's treatment notes show a deterioration in mental
functioning.

For

significant

nightmares,

significant

example,

psychomotor

in

October

and

the

slowing

2011,

plaintiff

treatment

and

reported

provider

depressed mood.

Tr.

noted
1070.

Another treatment note in November 2011 noted anhedonia, and that
plaintiff continues to be tormented by flashbacks and nightmares.
Tr.

1066.

In

February

2012,

a

treatment

provider

noted

that

plaintiff was positive for paranoia and delusions connected to
PTSD. Tr. 1064. This deterioration continued through 2012 and into
2013.

See generally,

1048,

1050,

1053,

1061.

Plaintiff's mental

health treatment notes are consistent with Dr. Weiss's opinion that
plaintiff meets Listing 12.06 as of November 3, 2011.
In concluding that the record lacks evidentiary support for an
onset

date

prior

to

November

3,

2011,

the

ALJ

discussed

the

examinations and opinions of consultative examiners, Ors. Kolilis
and Okulitch.

In a February 2007 examination,

Dr.

Kolilis noted

that plaintiff appeared well groomed and was a reliable historian.
Tr. 18, 19, 813. Dr. Kolilis observed no evidence of psychomotor
agitation or retardation and noted that plaintiff exhibited good

22 - OPINION AND ORDER

memory recall,
Kolilis

judgment,

diagnosed

and

cannabis

abstract

reasoning.

dependence

and

rule

Tr.
out

814.

Dr.

adjustment

disorder with mixed anxiety and depressed mood with a GAF score of
65.

As

the

ALJ

noted,

Dr.

Kolilis

specifically

opined

that

plaintiff did not have the criteria to support a diagnosis of
paranoia.

Dr.

Kolilis

further opined that plaintiff's "alleged

paranoia over being shot again [is inconsistent) with his admission
that he sits on the porch on a daily basis.n Tr. 19, 814.
The ALJ also cited to the examination and opinion of Dr.
Okulitch. As discussed previously, in an October 2006 examination
report,

Dr. Okulitch noted that plaintiff appeared to exaggerate

his physical and psychological symptoms.

Tr.

noted intact short and long-term memory,

adequate judgment and

insight,

and

an

ability

to

perform

serial

778.

seven

Dr.

Okulitch

calculations

without any difficulty. Tr. 777. Dr. Okulitch opined that plaintiff
is

capable

of

simple

and

complex

tasks

but

might

have

some

difficulty interacting with coworkers. Tr. 778. Dr. Okulitch, like
Dr. Kolilis, assessed a GAF score of 65.
Moreover,

the

March

1,

2007

opinion

of

a

non-examining

physician, Robert Henry, Ph.D. also supports the ALJ's conclusion
that prior to November 3, 2011, plaintiff did not meet the severity
of Listing 12.06. Tr. 23. In a Psychiatric Review Technique Form
(PRTF),

Dr.

activities

Henry opined that plaintiff has mild limitations in
of

daily

23 - OPINION AND ORDER

living,

mild

difficulty

in

maintaining

concentration, persistence, and pace, and moderate difficulty in
maintaining social functioning. Tr. 829. In a Mental RFC Assessment
Form,

Dr.

simple

Henry opined that plaintiff is capable of performing

routine

tasks

and should avoid direct

contact with the

public and close interaction with co-workers.
Henry's

opinion

great

weight

and

adopted

The ALJ gave

the

assessed

Dr.

mental

limitations as part of the RFC finding prior to November 3, 2011.
Tr. 21, 23. To be sure, plaintiff does not challenge the ALJ's RFC
finding that plaintiff can perform reduced light unskilled work
prior to November 3, 2011 .
.Furthermore, additional medical opinions in the record support
the ALJ' s crediting of Dr.

Weiss's opinion.

For example,

in the

December 13, 2010 hearing, medical expert, David R. Rullman, M.D.,
opined that plaintiff did not

appear to

fulfill

the necessary

criteria to support a diagnosis of PTSD. Tr. 115. In the May 2009
hearing,
plaintiff

medical
does

expert,
not

Robert

meet

a

H.

Bigley,

listing

on

M. D.

the

opined

basis

of

that
past

psychological evaluations. Tr. 147.
In summary, the ALJ properly credited Dr. Weiss's opinion over
Dr.

Balsamo' s

opinion with

respect

to plaintiff's

onset

date.

Indeed, plaintiff does not challenge the "great weight" given to
Dr. Weiss's opinion or the ALJ' s evaluation of the opinions of Drs.
Kolilis, Okulitch, Henry, Rullman, and Bigley. Because the ALJ's
interpretation is rational and is supported by substantial evidence

24 - OPINION AND ORDER

in the record as a whole,

it will not be disturbed.

See e.g.,

Molina, 674 F.3d at 1111 (ALJ's findings must be upheld if they are

supported

by

Therefore,

reasonable

I

conclude

inferences

that

the

ALJ

drawn

from

provided

the

a

record) .

specific

and

legitimate reason supported by substantial evidence to discount Dr.
Balsamo's opinion.
III. Lay Witness Testimony

Lay witness testimony as to how a claimant's symptoms affect
his ability to work is competent evidence, which the ALJ must take
into account. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009);
Stout, 454 F.3d at'l053; Nguyen v. Chater, 100 F.3d 1462, 1467 (9th

Cir.

1996).

The ALJ is

required

to

account

for

competent

lay

witness testimony, and if it is rejected, provide germane reasons
for doing so. Valentine,
At

the

March

2009

574 F.3d at 694.
hearing,

Quantisha

Barber,

plaintiff's

girlfriend, testified that plaintiff's pain limits his ability to
walk and that he is in pain approximately 75 percent of the time.
Tr. 177. Ms. Barber testified that plaintiff's fingers go numb and
he

drops

i terns

such

as

cooking

utensils.

Id.

Ms.

Barber

also

testified that plaintiff is easily worn out by physical activities
such as vacuuming and requires more time to complete such household

tasks.
crying

Tr.

178. Ms.

spells,

Barber further testified that plaintiff has

irritability,

concentration. Tr. 180.
25 - OPINION AND ORDER

and

difficulty

with

memory

and

In the instant action, plaintiff argues that the ALJ committed
a reversible error because he failed to discuss the lay witness
testimony of Ms. Barber. I disagree.
An ALJ's silent omission of lay testimony is upheld only if
the reviewing court "can confidently conclude that no reasonable
ALJ when

fully

crediting

the

testimony,

could

have

reached

a

different disability determination." Stout, 454 F.3d at 1056. Here,
the ALJ included limitations pertaining to plaintiff's pain in his
arm and

shoulder

plaintiff

to

in

light

the

RFC

work

and

assessment,
no

specifically

climbing

ropes,

limiting

ladders

and

scaffolding. Tr. 21. The ALJ also included a limitation to simple
routine work with no contact

with the general public or close

interaction with co-workers, which addresses Ms. Barber's testimony
regarding plaintiff's difficulty with memory and concentration. Id.
Plaintiff points to no additional workplace limitations described
in

Ms.

Barber's

testimony

that,

if

credited,

would

establish

disability. Therefore, plaintiff fails to establish that the ALJ's
omission of Ms. Barber's testimony is more than harmless.
Moreover, Ms.
behalf

of

harmless

Barber's testimony adds no new allegations on

plaintiff.

"[w) here

Failure

lay witness

to

comment

on

lay

testimony

testimony does

not

describe

is
any

limitations not already described by the claimant, and the ALJ's
well supported reasons for rejecting the claimant's testimony apply
equally well to the lay witness testimony." Molina,

26 - OPINION AND ORDER

674,

F.3d at

1117.

Ms.

including

Barber's testimony is
allegations

of

pain

similar to that

and

concentration. As discussed above,

difficulty

of plaintiff,

with

memory

and

the ALJ gave three convincing

reasons, supported by substantial evidence to discount plaintiff's
testimony. Specifically, the ALJ found that plaintiff exaggerated
his symptoms of pain, and this reason is equally applicable to Ms.
Barber's testimony. Thus,· the ALJ' s error in failing to discuss Ms.
Barber's testimony is harmless.

See Burch v.

Barnhart,

400 F.3d

676, 679 (9th Cir. 2005) ("A decision of the ALJ will not be reversed

for e~rors that are harmless.n).
CONCLUSION

For

the

reasons

stated

above,

the

Commissioner's

final

decision is AFFIRMED. This action is DISMISSED.
IT IS SO ORDERED.
DATED this

~O

day of April, 2015.

Malcolm F. Marsh
United States District Judge

27 - OPINION AND ORDER