Hamilton v. Commissioner of Social Security

Filing 17

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 08/07/2015 by Judge Anna J. Brown. See attached 24 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ANNE ELIZABETH HAMILTON,
Plaintiff,

v.
CAROLYN W. COLVIN,
Conunissioner, Social Security
Administration,
Defendant.

LISA R. J. PORTER
JP Law PC
5200 S.W. Meadows Rd
Suite 150
Lake Oswego, OR 97035
[phone]
Attorney for Plaintiff
BILLY J. WILLIAMS
Acting United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
1 - OPINION AND ORDER

3:14-CV-01271-BR
OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
JORDAN D. GODDARD
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant

BROWN, Judge.
Plaintiff Anne Elizabeth Hamilton seeks judicial review of a
final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act.

This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C.

§

405(g).

For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
Plaintiff filed an application for SSI on June 24, 2008, and
alleged a disability onset date of January 1, 2004.
Tr. 18. 1

Her application was denied initially and on

reconsideration.

At some.point before October 22, 2010, an

Administrative Law Judge (ALJ) held a hearing.

1

Tr. 18.

Citations to the official transcript of record filed by
the Commissioner on December 31, 2014, are referred to as "Tr."
2 - OPINION AND ORDER

On October 22, 2010, the ALJ issued an opinion in which he
found Plaintiff was not disabled and, therefore, was not entitled
to benefits.

Tr. 18.

That decision became the final decision of

the Commissioner when the Appeals Council denied Plaintiff's
request for review.·

Tr. 18.

See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).
On November 29, 2010 Plaintiff filed a second application
for SSI, and alleged a disability onset date of February 6, 2008.
Tr. 71.

The parties agree, however, that res judicata applies to

"the adjudicated period of the prior ALJ decision and, therefore,
the ALJ and this Court consider Plaintiff's disability only after
October 22, 2010."

In addition, res judicata creates a

rebuttable presumption of "continuing non-'disability" for any
period after the date of the October 22, 2010.
Bowen,

844 F.2d 691,

693 (9th Cir. 1988).

See Chaves v.

A claimant may

overcome the rebuttable presumption by establishing "changed
circumstances indicating a greater disability."

Id.

The

Commissioner, therefore, considered here only whether Plaintiff
established she had a greater disability after October 22, 2010,
than she had suffered before that time.
Plaintiff's second application was denied initially and on.,
reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on March 7, 2013.

Tr. 36-47.

and a vocational expert (VE) testified.

3 - OPINION AND ORDER

At the hearing Plaintiff
Plaintiff was

represented by an attorney.
On May 17, 2013, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 20-39.

On January 28, 2014, that decision

became the final decision of the Commissioner when the Appeals
Council denied Plaintiff's request for review.

Tr. 1-7.

See

Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

BACKGROUND

Plaintiff was born on April 18, 1979, and was 33 yeirs old
at the time of the hearing.
education.

Tr. 252.

Tr. 71.

Plaintiff has a high-school

She has past relevant work experience as a

body piercer, customer-service representative, carnival-ride
operator, and cashier.

Tr. 252.

Plaintiff alleges disability due to degenerative disc
disease, stenosis, arthritis, fibromyalgia, herpes, migraines,
chronic pain, depression, and anxiety.

Tr. 71.

Except when noted, Plaintiff does not challenge the ALJ's
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ's summary of the
medical evidence.

See Tr. 23-27.

STANDARDS

The initial burden of proof rests on the claimant to
4 - OPINION AND ORDER

establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate her

inability ''to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which .

. . has lasted or can be expected to last for

a continuous period of not less than 12 months."
§

423(d) (1) (A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari, 276 F.3d
453, 459-60 (9ili Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).

42

See also Brewes v. Comm'r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9'h Cir. 2012).

Substantial evidence is

"relevant evidence that a reasonable mind might accept as
adequate to support a conclusion."

Molina,

674 F.3d. at 1110-11

(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690
(9'h Cir. 2009)).

It is more than a mere scintilla [of evidence]

but less than a preponderance.

Id.

(citing Valentine, 574 F.3d

at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving

5 - OPINION AND ORDER

ambiguities.
2009) .

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner's findings
if they are supported by inferences reasonably drawn from the

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

record.

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006) .

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

See also 20 C.F.R.

§

416.920.

Each step is potentially

dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R.

§

416.920(b).

Soc. Sec., 648 F.3d 721, 724

See also Keyser v. Comm'r of

(9th Cir. 2011).

At Step Two the claimant is not disabled if the Commis6 - OPINION AND ORDER

sioner determines the claimant does not have any medically severe
impairment or combination of impairments.
§

416.920(c).

See also Keyser,

20 C.F.R.

648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner
determines the claimant's impairments meet or equal one of a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity.
C.F.R. § 416.920(a) (4) (iii).

See also Keyser,

The criteria for the listed impairments,

20

648 F.3d at 724.

known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments) .
If the Commissioner proceeds beyond Step Three, she must
assess the claimant's Residual Functional Capacity (RFC).

The

claimant's RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§

416. 945 (a).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

"A

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm'r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011) (citing Fair v. Bowen, 885
F.2d 597,

603 (9th cir. 1989)).

At Step Four the claimant is not disabled if the

7 - OPINION AND ORDER

Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
See also Keyser,

20 C.F.R.

§

416.920(a) (4) (iv).

648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do other work that exists in the
national economy.
Keyser,

20 C.E'.R.

648 F.3d at 724.

§

416.920(a)(4)(v).

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Comm'r Soc. Sec. Admin.,

Lockwood v.

616 F.3d 1068, 1071 (9th Cir. 2010).

The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.

If the Commissioner meets this burden, the claimant

is not disabled.

20 C.F.R.

§

416.920(g) (1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff had not engaged in
substantial gainful employment since her November 29, 2010,
application date.

Tr. 20.

At Step Two the ALJ found Plaintiff has the following severe
impairments:

degenerative disc disease, fibromyalgia, headaches,

depression, post-traumatic stress disorder (PTSD), and a pain
disorder.

Tr. 21.

The ALJ found Plaintiff's impairments of

8 - OPINION AND ORDER

liver hemangiomas, herpes, and kidney pain are not severe.
Tr. 21.
At Step Three the ALJ concluded Plaintiff's impairments or
combination of impairments do not meet or equal the criteria for
any Listed Impairment from 20 C.F.R. part 404, subpart P,
appendix 1.

The ALJ found Plaintiff has the RFC to perform "less

than the full range of light work.ff

Tr. 23.

The ALJ found

Plaintiff can lift and carry 20 pounds occasionally and 10 pounds
frequently; can stand and walk for six hours in an eight-hour
work day; can sit for six hours in an eight-hour work day; and
can occasionally crawl, crouch, stoop, and climb stairs and
ramps.

Tr. 23.

The ALJ found Plaintiff should never climb

ladders, ropes, or scaffolds or have contact with the public.
Tr. 23.

The ALJ also found "[a]ny production goals should be

assessed on a daily basis, rather than on [an] assembly-type
production goal.ff

Tr. 23.

At Step Four the ALJ concluded Plaintiff is unable to
perform her past relevant work.

Tr. 29.

At Step Five the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy.

Tr. 29.

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION

Plaintiff contends the ALJ erred when he improperly

9 - OPINION AND ORDER

(1) found Plaintiff is not fully credible,
of various medical sources,

(2) evaluated opinions

(3) partially rejected lay-witness

testimony, and (4) evaluated Plaintiff's RFC.

I.

The ALJ did not err when he found Plaintiff is not fully
credible.
Plaintiff alleges the ALJ erred by failing to provide clear

and convincing reasons for finding Plaintiff is not fully
credible.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).

Cotton, 799 F.2d 1403, 1407 (9'h

The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if she provides clear and
convincing reasons for doing so.

Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007) (citing Lester v. Chater, 81 F.3d 821, 834
Cir. 1995)).

(9th

General assertions that the claimant's testimony is

not credible are insufficient.

10 - OPINION AND ORDER

Id.

The ALJ must identify "what

testimony is not credible and what evidence undermines the
claimant's complaints."

Id.

(quoting Lester, 81 F.3d at 834)

At the March 2013 hearing Plaintiff testified her last day
of employment was February 6, 2008, and she left because it was
"increasingly difficult for [her] to sit or stand for long
periods of time."

Tr. 41.

Plaintiff ultimately left her work

when she was eight-months pregnant and experiencing medical
complications.

Tr. 41-42.

Plaintiff testified she is a single

mother of three children ages 12, 8, and 5.
stays home with her five year old.

Tr.

41.

Plaintiff

Plaintiff testified she went

to two school events during the prior school year.

Tr. 43.

In a

March 22, 2013, memorandum to the ALJ Plaintiff asserted her
degenerative disc disease, headaches, and mental health all had
become materially worse since the October 22, 2010, denial of her
first SSI application.
The ALJ found Plaintiff's "medically determinable
impairments could reasonably be expected to cause some of
[Plaintiff's] alleged symptoms; however,

[Plaintiff's] statements

concerning the intensity, persistence and limiting effects of
these symptoms are not fully credible."

Tr. 23.

The ALJ noted

the record does not indicate a significant worsening of
Plaintiff's degenerative disc disease or fibromyalgia since the
October 2010 decision.

For example, a November 2008 MRI of

Plaintiff's lumbar spine indicated Plaintiff had mild

11 - OPINION AND ORDER

degenerative disc disease from L3-4 through L5-Sl and mild
foraminal stenoses at L4-5.

Tr. 372.

A November 2008 MRI of

Plaintiff's cervical spine indicated early degeneration of the
C4-5 disc with mild disc space narrowing.

Tr. 375.

The record

does not contain another MRI of Plaintiff's lumbar spine, but a
November 2010 MRI indicated moderate stenosis at C4-5 and mild
stenosis at C5-6 and C6-7.

Tr. 753.

Nevertheless, at an October

2012 appointment with her treating physician, Melissa Jeffers,
M.D., Plaintiff had a full range of motion in her cervical,
thoracic, and lumbar spine.

Tr. 780.

In August 2011 Karen

Marto, F.N.P., noted Plaintiff's cervical spinal stenosis
remained unchanged.

Tr. 693.

With respect to headaches the ALJ noted Plaintiff has been
prescribed narcotic pain medication and received fttrigger pointn
injections every six months for her headaches.

On November 22,

2010, Plaintiff reported her headaches had improved with
medication.

Tr. 531.

Plaintiff expressed interest in getting

trigger point injections, which had helped her in the past.
Tr. 531.

In June 2012 Dr. Jeffers reported Plaintiff had done

ftwell with trigger point injectionsn and would like to continue
to receive them, which Dr. Jeffers approved.

Tr. 708.

The ALJ

noted Plaintiff began receiving trigger point injections every
six months after November 2010 and has maintained that schedule.
Plaintiff's treatment for headaches has not increased since she

12 - OPINION AND ORDER

..
began treating them with a regimen of soma, percocet, and trigger
point injections.
As to Plaintiff's depression and anxiety the ALJ noted
although the record reflects Plaintiff continues to have some
anxiety when leaving her home, in March 2012 Plaintiff reported
"things have been going pretty well," she has a positive outlook,
and "is in a new place [emotionally]."

Tr. 602.

In June 2012

Plaintiff reported she had reduced her anti-depressant medication
and wanted to stop taking it entirely.

Tr. 707.

Plaintiff

stated reducing her medication had "gone pretty well."

Tr. 707.

Dr. Jeffers reported at the June 2012 appointment that Plaintiff
"has developed several excellent coping skills
supports.

. and

PHQ [Personal Health Questionnaire] actually improved.

I believe a trial off anti-depressant would be good and that she
has a strong chance of success without it."

Tr. 708.

In July

2012 Dr. Jeffers reported Plaintiff was "done with effexor."
Tr. 705.

Although Plaintiff had an increase in pain with

withdrawal, her PHQ remained stable and Dr. Jeffers noted
Plaintiff had "[r]emarkably good emotional self care and
self-talk."

Tr. 706.

In October 2012 Dr. Jeffers reported

Plaintiff's pain was not under control, but she had been "warned
pain would spike" after she went off venalafaxine.

Tr. 703.

Nevertheless, Dr. Jeffers also reported Plaintiff had
community and personal engagement."

13 - OPINION AND ORDER

Tr. 703.

"improved

In February 2013

Plaintiff reported she was "feeling less anxious and has been
challenging herself to continue to leave the house."

Tr. 767.

For example, Plaintiff reported she had signed up to be on the
parent-review board for her son's lodge, "which is increasing her
social interactions."

Tr. 767.

Finally, the ALJ noted

Plaintiff's treatment providers have consistently assessed
Plaintiff with GAF2 scores from 55 to 63 3 during the relevant
period.

Tr.

424,

619, 621-28, 770.

The ALJ also noted Plaintiff's reported activities of daily
living did not appear to be more limited at the time of the
hearing than they were in October 2010.

For example, in her

prior application for disability Plaintiff reported she cared for
her three children including taking care of two children at home

2

Although the fifth edition of the Diagnostic and
Statistical Manual of Mental Disorders issued May 27, 2013,
abandoned the GAF scale in favor of standardized assessments for
symptom severity, diagnostic severity, and disability, at the
time of Plaintiff's assessment and the ALJ's opinion the GAF
scale was used to report a clinician's judgment of the patient's
overall level of functioning on a scale of 1 to 100.
See
Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV)
31-34 (4th ed. 2000).
3

A GAF of 51-60 indicates moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers 6r coworkers).
A GAF of 61-70 indicates "[s]ome mild symptoms (e.g.,
depressed mood and 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)
31-34 (4~ ed. 2000).
14 - OPINION AND ORDER

herself while her oldest child was in school.

Tr. 54.

Plaintiff

reported preparing three meals a day for her family, attending
school activities, performing household chores, visiting with
friends up to three times per week, and attending family
functions with her children.

Tr. 54.

In a February 2011 Adult

Function Report Plaintiff stated she cares for her three
children, washes their clothing, prepares food for them, and
helps them with school work.

Tr. 267.

Plaintiff reported she

grocery shops with her children 3-4 times per month and they help
her to carry items.

Tr. 269.

Plaintiff reported she goes to

bible study or has friends visit her house 1-2 times per week.
Tr. 270.

Plaintiff noted she regularly attends bible study, her

children's chess tournaments, and counseling.

Tr. 270.

On this record the Court finds the ALJ did not err when he
found Plaintiff was not fully credible because the ALJ provided
clear and convincing reasons supported by substantial evidence in
the record for doing so.
II.

The ALJ did not err when he gave limited weight to various
treatment providers.
Plaintiff contends the ALJ erred when he gave limited weight

to the opinions of Dr. Jeffers; Plaintiff's mental-health
counselor, Darcy Nyone; and Plaintiff's treating nurse
practitioner, Karen Morto, F.N.P.
Medical sources are divided into two categories:
''acceptable'' and ''not acceptable."
15 - OPINION AND ORDER

20 C.F.R. § 416.902.

Acceptable medical sources include licensed physicians and
psychologists.

20 C.F.R. § 416.902.

An ALJ may reject treating

physician's opinion when it is inconsistent with the opinions of
other treating or examining physicians if the ALJ makes "findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record."
Barnhart, 278 F.3d 947,

Thomas v.

957 (9th Cir. 2002) (quoting Magallanes v.

Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

When the medical

opinion of treating physician is uncontroverted, however, the ALJ
must give "clear and convincing reasons" for rejecting it.
Thomas,

278 F.3d at 957.

See also Lester v. Chater, 81 F.3d 821,

830-32.
Medical sources classified as ''not acceptable'' include, but
are not limited to, nurse practitioners, therapists, licensed
clinical social workers, and chiropractors.

SSR,06-03p, at *2.

The ALJ must explain the weight assigned to not acceptable
medical sources to the extent that a claimant or subsequent
reviewer may follow the ALJ's reasoning.

A.

SSR 06-03p, at *6.

Dr. Jeffers
On January 25, 2012, Dr. Jeffers completed a Mental

Impairment Questionnaire in which she indicated Plaintiff would
have substantial difficulty with stamina, pain, and/or fatigue if
she was working full time at the light or sedentary levels.
Tr. 564.

Dr. Jeffers opined Plaintiff's depression, anxiety,

16 - OPINION AND ORDER

PTSD, and sleep disorder would cause Plaintiff to be absent from
work approximately three times per month.

Tr. 565.

Dr. Jeffers

indicated Plaintiff was "slightly limited" in her ability to
sustain an ordinary routine, to complete a normal workday and
workweek "without interruption from psychologically based
symptoms," and to "perform at a consistent pace without an
unreasonable number and length of rest periods."

Tr. 566.

Dr. Jeffers stated Plaintiff was moderately restricted in her
activities of daily living; had moderate difficulties in
maintaining social functioning; and had moderate deficiencies in
concentration, persistence, or pace.

Tr. 567.

Dr. Jeffers

indicated Plaintiff did not have any limitation in her ability
to, among other things, understand, to remember, and to carry out
short and simple instructions; to maintain "regular attendance
and be punctual within customary, usually strict tolerances; and
to sustain an ordinary routine without special supervision.
Tr. 566.

Dr. Jeffers declined to assess Plaintiff with a either

a current GAF or a GAF for the past year noting "defer to psych."
Tr. 561.
The ALJ gave Dr. Jeffers's opinion that Plaintiff was
not able to work at the sedentary or light exertion levels little
weight on the ground that it is inconsistent with the medical
record.

For example, the record indicates Plaintiff has only

mild lumbar degenerative disc disease and mild to moderate

17 - OPINION AND ORDER

'

'

cervical disc disease.

Tr. 372, 528, 780.

The ALJ noted

Plaintiff's treatment providers have not recommended surgery for
her impairments, Plaintiff's treatment for her back pain and
headaches has remained consistent since November 2010, and
Plaintiff had decreased medications for her depression and
anxiety since November 2010.

Tr. 26.

In addition, the ALJ

pointed out that Plaintiff's health-care providers have
consistently assessed her with GAFs in a range that indicates
only mild to moderate limitations.
The ALJ also noted Plaintiff's reported activities of
daily living such as caring for her three children, preparing
meals, performing household chores, attending bible study,
attending school activities, and joining organizations such as
the parent-review board reflect Plaintiff does not have the level
of limitation indicated by Dr. Jeffers.
On this record the Court concludes the ALJ did not err
when he gave little weight to Dr. Jeffers's opinion that
Plaintiff was not able to work at the sedentary or light exertion
levels because the ALJ provided legally sufficient reasons
supported by substantial evidence in the record for doing so.
B.

Darcy Nyone
Plaintiff contends the ALJ erred when he gave limited

weight to the May 2011 opinion of Plaintiff's mental-health
counselor, Darcy Nyone.

18 - OPINION AND ORDER

On May 17, 2011, Nyone completed a Mental Impairment
Questionnaire in which she noted she had treated Plaintiff for
approximately five months and she did not have Plaintiff's
medical history.

Tr. 556.

As a result, Nyone declined to answer

a number of questions such as Plaintiff's ability to work eight
hours a day in a forty hour work week at a "normal pace," how
often Plaintiff would be absent from work due to her impairments,
and Plaintiff's ability to do "work-related activities on a dayto-day basis in a regular work setting."

Tr. 553-54.

Nevertheless, Nyone opined Plaintiff had moderate restrictions in
her activities of daily living and marked difficulty in
maintaining social functioning.

Tr. 556.

Nyone assessed

Plaintiff with a current GAF of 60 and a GAF of 60 in the past
year.

Tr. 550.
The ALJ gave Nyone's opinion regarding Plaintiff's

activities of daily living and social functioning limited weight.
The ALJ noted Plaintiff's activities of daily living and social
functioning including caring for her three children, washing
their clothing, preparing food,

helping her children with school

work, grocery shopping 3-4 times per month, going to bible study,
joining the parent-review board, attending her children's events,
attending counseling, and visiting with friends 1-2 times per
week indicate Plaintiff does not have marked limitations in
social functioning or moderate limitations in her activities of

19 - OPINION AND ORDER

..
daily living.
On this record the Court concludes the ALJ did not err
when he gave little weight to Nyone's opinion that Plaintiff had
moderate restrictions in her activities of daily living and
marked difficulty in maintaining social functioning because the
ALJ provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
C.

Karen Morto

Plaintiff contends the ALJ erred when he gave little
weight to the opinion of Plaintiff's treating nurse practitioner,
Karen Morto, F.N.P., that Plaintiff is unable to work at the
sedentary or light exertion level.
On February 21, 2012, Morto completed a Medical Opinion
Questionnaire regarding Plaintiff's physical ability to do workrelated activities in which she opined Plaintiff was able to
stand and to walk less than two hours in an eight-hour work day,
to sit less than two hours in an eight-hour work day, to sit and
to stand no more than 30 minutes before changing position, to
lift less than ten pounds occasionally, and to lift ten pounds
rarely.

Tr. 573-74.

Morton indicated Plaintiff would

"experience substantial difficulty with stamina, pain or fatigue
if [she] was working full time, eight hours a day, at the light
or sedentary levels."

Tr. 570.

Morton also opined Plaintiff

would miss work more than four times per month due to her

20 - OPINION AND ORDER

impairments and/or treatment.

Tr. 575.

The ALJ gave limited weight to Morton's opinion that
Plaintiff would be unable to work at the sedentary or light
exertion level.

The ALJ noted the record indicates Plaintiff

suffers only mild lumbar degenerative disc disease and mild to
moderate cervical degenerative disc disease.

In addition,

although Plaintiff reported numbness in her left arm, a June 2011
nerve conduction study was normal and did not show any evidence
of radiculopathy, plexopathy, or entrapment neuropathy.

The ALJ

also noted Plaintiff's activities of daily living suggest she is
capable of performing sedentary or light work.
On this record the Court concludes the ALJ did not err
when he gave little weight to Morto's opinion that Plaintiff is
unable to work at the sedentary or light exertion level because
the ALJ provided legally sufficient reasons supported by
substantial evidence in the record for doing so.
III. The ALJ did not err when he partially rejected a lay-witness
statement
Plaintiff contends the ALJ erred when he gave limited weight
to the February 2011 Function Report provided by Plaintiff's
friend Charlotte Ann Burton.
Lay testimony regarding a claimant's symptoms is competent
evidence that the ALJ must consider unless he "expressly
determines to disregard such testimony and gives reasons germane
to each witness for doing so."
21 - OPINION AND ORDER

Lewis v. Apfel, 236 F.3d 503, 511

(9th Cir. 2001).

See also Merrill ex rel. Merrill v. Apfel, 224

F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a
claimant's disability, must give full consideration to the
testimony of friends and family members.").

The ALJ's reasons

for rejecting lay-witness testimony must also be "specific."
Stout v. Comm'r,

454 F.3d 1050, 1054 (9th Cir. 2006).

Burton reported Plaintiff has difficulty with physical
activities and using her left hand.

As a result Burton indicated

Plaintiff wears only sweatpants and pajamas, can feed herself but
"pukes up every other meal," and goes out "only for
appointment[s] or [to] school for kids meeting."

Tr. 275-76.

Burton indicated Plaintiff has some difficulty performing
activities of daily living such a preparing food and doing
housework and is assisted by her older children in doing tasks
such as laundry and shopping.

Burton indicated she spends "many

hours a week" with Plaintiff and Plaintiff also spends time with
others doing bible study, praying, and talking.

Tr. 278.

Burton

reported Plaintiff can walk for two blocks before needing to rest
and the amount of time Plaintiff needs to rest before she can
resume walking "depends on [her] pain level."

Tr. 279.

The ALJ gave limited weight to Burton's report on the
grounds that it is contradicted by the medical evidence and by
Plaintiff's activities of daily living.

Specifically, the ALJ

noted the record reflects Plaintiff suffers only mild lumbar

22 - OPINION AND ORDER

degenerative disc disease and mild to moderate cervical
degenerative disc disease.

In addition Plaintiff's nerve

conduction study was normal and did not show an evidence of
radiculopathy, plexopathy, or entrapment neuropathy.

The ALJ

also noted Plaintiff's activities of daily living suggest she is
capable of performing sedentary or light work.
On this record the Court concludes the ALJ did not err when
he gave limited weight to Burton's lay-witness statement because
the ALJ gave reasons germane to Burton for doing so.

IV.

The ALJ did not err in his assessment of Plaintiff's RFC.
Plaintiff contends the ALJ erred in his assessment of

Plaintiff's RFC because the ALJ failed to include all of
Plaintiff's limitations set out in the opinions of Dr. Jeffers,
Darcy Nyone, and Karen Morto.
Because the Court has found the ALJ properly gave little
weight to portions of the opinions of Dr. Jeffers, Darcy Nyone,
and Karen Morto, the Court concludes the ALJ did not err when he
did not consider limitations based on the rejected portions of
their opinions in his assessment of Plaintiff's RFC.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the

23 - OPINION AND ORDER

Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this

7th

day of August, 2015.

ANN~

United States District Judge

24 - OPINION AND ORDER