Watkins v. Commissioner Social Security Administration

Filing 16

OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. This action is DISMISSED. See formal OPINION AND ORDER. Signed on 6/17/2015 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JESSICA M. WATKINS,

Case No. 3:14-cv-01309-AA
OPINION AND ORDER

Plaintiff,
v.

CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
Lisa R.J. Porter
KP Law PC
5200 SW Meadows Rd., Suite 150
Lake Oswego, Oregon 97035
Attorney for plaintiff
Billy J. Williams
Ronald K. Silver
United States Attorney's Office
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97201
Sarah L. Martin
Social Security Administration
Office of General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104
Attorneys for defendant

Page 1 - OPINION AND ORDER

AIKEN, Chief Judge:
Plaintiff Jessica Watkins brings this action pursuant to the
Social Security Act

("Act")

to obtain judicial review of a final

decision of the Commissioner of Social Security ("Commissioner") .
The

Commissioner

denied

plaintiff's

supplemental security income
below,

("SSI").

application

for

Title

XVI

For the reasons set forth

the Commissioner's decision is affirmed and this case is

dismissed.
PROCEDURAL BACKGROUND

On October 12, 2010, plaintiff applied for SSI. Tr.

163-72.

Her application was denied initially and upon reconsideration. Tr.
118. On August 9, 2012, a hearing was held before an Administrative
Law Judge ("ALJ"), wherein plaintiff was represented by counsel and
testified, as did a vocational expert ("VE"). Tr. 65-75. On August
29, 2012, the ALJ issued a decision finding plaintiff not disabled
within the meaning of the Act. Tr. 15-29. After the Appeals Council
denied her request for review, plaintiff filed a complaint in this
Court.
STATEMENT OF FACTS

Born on September 3, 1976, plaintiff was 8 years old on the
alleged onset date of disability and 35 years old at the time of
the hearing. Tr. 27,

48, 55, 162. Plaintiff received her GED. Tr.

50, 188. She worked previously as a sales representative, carnival
ride

operator,

and

a

fast

Page 2 - OPINION AND ORDER

food

worker.

Tr.

50-53,

186,

189.

Plaintiff alleges disability as of September 3, 1984, due to manic
depression,

anxiety,

hypothyroidism,

bi-polar

disorder,

type two diabetes,

high

blood

pressure,

and her inability to regulate

her anger and aggressiveness arising from post-traumatic stress
disorder ("PTSD"). Tr. 163.
STANDARD OF REVIEW

The 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. Hammock v. Bowen, 879 F.2d 498,
501

(9th Cir.

scintilla.

1989)

Substantial evidence is "more than a mere

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971)

(citation and internal quotations

omitted). The court must weigh "both the evidence that supports and
detracts

from

Heckler,

8 07

the
F.2d

interpre~tations

of

[Commissioner's]
771,
the

772
evidence

conclusions."

(9th
are

Cir.

Martinez

198 6) .

insignificant

v.

Variable
if

the

Commissioner's interpretation is rational. Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005).
The

initial

burden

of

establish disability. Howard

proof
v~

rests

upon

the

claimant

to

Heckler, 782 F.2d 1484, 1486 (9th

Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which

Page 3 - OPINION AND ORDER

. to last for a continuous period of not less

can be expected .

than 12 months." 42 U.S.C.
The
process

Commissioner

§

has

423(d) (1) (A)
established

for determining whether a

a

five-step

person is disabled.

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

determines

whether

sequential

a

Bowen v.

416.920. First, the

§

claimant

is

engaged

in

"substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R.
§

416.920(b). If so, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant

has a "medically severe impairment or combination of impairments."
Yuckert,

482

U.S.

at

140-41;

20

C.F.R.

§

416.920(c).

If

the

claimant does not have a severe impairment, she is not disabled.
At

step

three,

the

Commissioner

determines

whether

the

claimant's impairments, either singly or in combination, meet or
"one

equal

[Commissioner]

of

a

§

of

acknowledges

substantia 1 gain f u 1
C.F.R.

number

activity . "

listed

are

so

Yuck e r t ,

impairments
severe

as

4 8 2 U. S .

that

to
at

the

preclude
14 0 - 4 1 ;

20

416.920(d). If so, the claimant is presumptively disabled;

if not, the Commissioner proceeds to step four. Yuckert,

482 U.S.

at 141.
At step four, the Commissioner resolves whether the claimant
can still perform "past relevant work." 20 C.F.R.

§

416.920(f). If

the claimant can work, she is not disabled; if she cannot perform
past relevant work, the burden shifts to the Commissioner. At step

Page 4 - OPINION AND ORDER

five, the Commissioner must establish that the claimant can perform
other work existing in significant numbers in the national and
local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R.
If

the

Commissioner

disabled. 20 C.F.R.

§

meets

this

burden,

the

§

416.920(.g).

claimant

is

not

416.966.
THE ALJ'S FINDINGS

At step one of the five step sequential evaluation process
outlined

above,

the

ALJ

found

plaintiff

had

not

engaged

in

substantial gainful activity since the application date. Tr. 20. At
step two,

the ALJ determined plaintiff has the following severe

impairments: diabetes mellitus, obesity, peri-umbilical abdominal
hernia,

bipolar

disorder,

anxiety

disorder,

and

borderline

personality disorder. Id. At step three, the ALJ found plaintiff's
impair~ents,

either singly or in combination, did not meet or equal

the requirements of a listed impairment. Id.
Because she did not establish presumptive disability at step
three,

the ALJ continued to evaluate how plaintiff's impairments

affected

her

ability

to

work.

Tr.

21.

plaintiff possessed the residual capacity

The

ALJ

(~RFC")

resolved

to perform less

than the full range of light work:
consisting of lifting and carrying no more than twenty
pounds with frequent lifting or carrying of objects
weighing up to ten pounds. There are no limitations on
[her] ability to sit,. stand, or walk. [She] is further
limited to no work around hazards such as unprotected
height[s] or dangerous machinery. She cannot climb
ladders, ropes or scaffolds. She is able to remember,
understand, and carry out simple tasks or instructions
Page 5 - OPINION AND ORDER

that

typical
of
occupations
of
a
specific
vocational
preparation (SVP) of one or two. She cannot work with the
general public and works best in an environment where she
has only superficial interaction with coworkers, [with] no
work that requires teamwork or close cooperation.
Tr. 22.
At step four,

the ALJ determined that plaintiff could not

perform any relevant past work. Tr. 27. At step five, the ALJ found
that plaintiff could perform a significant number of jobs existing
in the national and local economy, despite her impairments, such as
hand packager and food assembler.

Tr.

28.

Accordingly,

the ALJ

concluded that plaintiff was not disabled under the Act. Id.
DISCUSSION

Plaintiff argues that the ALJ erred by:

( 1)

finding her not

fully credible; (2) failing to properly assess the testimony of lay
witness Carol Skinner;
Donna Wicher,

Ph.D.,

(3) rejecting medical evidence furnished by
P.C.; and (4)

her impairments in the RFC,

failing to account for all of

such that the step five finding was

invalid.
I.

Plaintiff's Credibility
Plaintiff asserts that the ALJ failed to provide a clear and

convincing reason, supported by substantial evidence, for rejecting
her subjective symptom testimony concerning the severity of her
impairments. When a claimant has medically documented impairments
that could reasonably be expected to produce some degree of the
symptoms complained of,

and the record contains no affirmative

Page 6 - OPINION AND ORDER

evidence

of

malingering,

ALJ

~the

can

testimony about the severity of
specific,

reject

claimant's

symptoms only by offering

clear and convincing reasons for doing so." Smolen v.

Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)
A general

assertion that

insufficient;

the ALJ must

credible

what

and

the

~state

evidence

(citation omitted).

claimant
which

suggests

The reasons proffered must be
court

to

conclude

the

credible

complaints
918

is

are

not

(9th Cir. 1993).

specific to permit the

ALJ did

discredit the claimant's testimony." Orteza v.
748, 750 (9th Cir. 1995)

not

testimony is not

the

~sufficiently

that

is

.

credible." Dodrill v. Shalala, 12 F.3d 915,

reviewing

the

not

arbitrarily

Shalala,

50 F. 3d
~ALJ'

(internal citation omitted). If the

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)
At

the

hearing,

plaintiff testified:
Tr.

53.

She

when
~I

also

asked

blow up,

stated,

~I

[Posttraumatic Stress Disorder]

why

she

(citation omitted).
was

unable

to

work,

can't concentrate, mind races."
constantly

suffer

from

PSD

It's hard to function through

a normal day because these thoughts come up and I don't know how to
deal

with

them."

household chores,

Id.

Plaintiff

reported

engaging

in

limited

such as dressing and cooking simple meals. Tr.

58. When asked what she does on a typical day, plaintiff responded
that she wakes up, cooks food, makes plans for completing household

Page 7 - OPINION AND ORDER

chores, but forgets to do them because her mind is "racing 20 times
a minute and the house is a mess." Id.
After summarizing her hearing testimony,
plaintiff's

that

medically

the ALJ determined
impairments

determinable

could

reasonably be expected to produce some degree of symptoms, but her
statements regarding the extent of these symptoms were not fully
credible due to her inconsistent statements,

activities of daily

living, and history of improvement with treatment. Tr. 25.
Notably, the ALJ found that plaintiff was inconsistent in her
reports of why she stopped working. Tr. 23-24. Discrepancies in the
testimony of a claimant can serve as clear and convincing reasons
for discrediting that testimony. Burch, 400 F.3d at 676, 680. The
ALJ may

also

draw

an

adverse

credibility

inference

where

the

claimant stops working for reasons unrelated to his or her alleged
disability. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001).
Substantial evidence supports the ALJ's conclusion in the case at
bar. During a July 2010 comprehensive mental health assessment by
the Native American Rehabilitation Association, plaintiff reported
that before she went to prison,
job."

Tr.

2 5,

650.

When

plaintiff informed the

she

she had been "doing well & had a
initially

applied

for

benefits,

Social Security Administration that

she

stopped working "because of other reasons" and because she "moved
out

of the

state."

Tr.

18 7.

By contrast,

at

the ALJ hearing,

plaintiff remarked she stopped working because she was disabled and

Page 8 - OPINION AND ORDER

that she had been fired from every job she ever had. Tr. 52-53. In
sum, plaintiff's statements that she was

~doing

well" before prison

and was no longer working in 2005 because of a cross-country move,
contradict

her

hearing

testimony

that

her

impairments

became

disabling in 1984. Tr. 187. As the ALJ reasonably concluded, these
conflicting statements undermine plaintiff's credibility. 1
Furthermore, the ALJ found that the severity of plaintiff's
alleged symptoms was not supported by the objective mental health
evidence. The treatment a claimant uses to alleviate symptoms is
~an

important indicator of the intensity and persistence of

[a

claimant's] symptoms." 20 C.F.R. § 416.929(c) (3). Not seeking

~an

aggressive

treatment

the

claimant's

symptoms

program"
were

not

permits
as

the

inference
as

~all-disabling"

that

reported.

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Although
an ALJ may

not

rely

discredit a claimant,
among others.

solely on

a

lack

of medical

evidence

to

it is one factor that may be considered,

Rollins v.

Massanari,

261 F.3d 853,

857

(9th Cir.

2001)(citing 20 C.F.R. § 404.1529(c)(2)). The ALJ observed that,
despite

reporting

severe

1

health

symptoms,

the

records

from

Although not cited by the ALJ, the court notes that
plaintiff's testimony concerning the length of her past
employment is also inconsistent. In her brief, plaintiff argues
that her work history reports prove that she has never held a job
for more than four months. Pl.'s Opening Br. 22. Yet, at the ALJ
hearing, plaintiff stated that she never worked more than a
month. Tr. 52. Later at the ALJ hearing, she testified, ~I've
only held a job eight months." Tr. 55.
Page 9 - OPINION AND ORDER

plaintiff's primary physician consistently revealed no psychiatric
symptoms and stability with treatment. See, e.g., Tr. 682 ("Effexor
has worked well for her"),
(712-713)

683

(" [n] o depression or anxiety"),

("[n]o depression or anxiety ... stable on meds. continue

current dosing"),

737

("[s]he has a normal mood and affect

[and]

[h]er behavior is normal"). Louis Drakos, M.D., noted no evidence
of any psychomotor retardation and that plaintiff's behavior "was
generally

appropriate

and

cooperative

with

adequate

impulse

control." Tr. 639. Further, the record reflects that plaintiff has
denied hallucinations or delusions multiple times and,

during a

comprehensive pyschodiagnostic evaluation, Dr. Wicher observed that
plaintiff did not appear to be responding to any internal stiumli.
Tr. 701.
Lastly,

plaintiff

has

not

sought

regular

mental

health

treatment. A claimant may be discredited "if the medical reports or
records

show

that

[she]

is

not

following

the

treatment

as

prescribed and there are no good reasons for this failure." SSR
96-7P, available at 1996 WL 374186. In December 2010, Dr. Wicher
opined

that

plaintiff

would

likely

"be

more

successful

at

sustaining employment in the future" if she underwent therapy and
consistent medication management.
however,

plaintiff

counseling
"counseling

since
is

testified

being

just

a

that

released
gossip

Page 10 - OPINION AND ORDER

Tr.

7 02.

she

from

table

to

At the ALJ hearing,

had

not

prison

in

me."

Tr.

obtained
2009
62-63.

any

because
While

improved

functioning

necessarily

or

translate

stability

to

the

with

ability

treatment
to

does

maintain

not

gainful

employment, it was proper for the ALJ to consider those factors in
evaluating plaintiff's credibility. Burch, 400 F.3d at 680.
Thus,
supported

the
by

ALJ's

credibility

substantial

finding

evidence

in

was

the

reasonable

record.

The

and

ALJ's

credibility assessment is affirmed.
II. Rejection of the Lay Opinion
Plaintiff next contends the ALJ failed to properly assess the
lay testimony of her mother, Ms. Skinner. Lay witness observations
regarding a claimant's symptoms or functional limitations must be
considered by the ALJ. Molina v. Astrue,
2012).

674 F.3d 1114

(9th Cir.

The ALJ must provide reasons germane to each witness in

order to reject such testimony. Lewis v. Apfel, 236 F.3d 503, 511
(9th Cir. 2001).
In a third party function report,

Ms.

Skinner opined that

plaintiff has "perception issues which makes her feel persecuted
and resentful."

Tr.

212.

Under a

section where third parties

provide information about the plaintiff's abilities, Ms. Skinner
wrote that plaintiff has told her that "it is always someone else's
fault" whenever she is terminated from employment.
Skinner

concluded

necessary

to

relationship,

that

plaintiff

make

it

on

she

hopes

her
to

Page 11 - OPINION AND ORDER

be

"lacks

own,"
around

and
"a

the
in

Tr. 217. Ms.

mental
regards

long

time

maturity
to
to

their
be

of

assistance" to plaintiff. Tr. 219.
The ALJ found that Ms. Skinner's testimony was contradicted by
medical

evidence,

specifically

the

evidence

plaintiff was able to work before prison.

Tr.

reflecting
2 4.

that

Inconsistency

with the medical evidence is a germane reason to reject third-party
statements.

Apfel,

236 F.3d at 503,

511.

Additionally,

the ALJ

found that Ms. Skinner's opinion was conclusory, lacked expertise
relating

to

plaintiff's

impairments,

and

was

potentially

sympathetic or biased due to their personal relationship. Id.
Even assuming,

however,

such error was harmless.

that the ALJ erred in this regard,

See Molina,

674 F.3d at 1114-1122

("an

ALJ's failure to comment upon lay witness testimony is harmless
where the same evidence that the ALJ referred to in discrediting
the

claimant's

claims

also

discredits

the

lay

witnesses's

claims") (citation and internal quotations omitted). Ms. Skinner's
testimony

regarding

the

extent

of

plaintiff's

limitations were not substantially different,
greater,

than

plaintiff's

allegations.

(plaintiff's hearing testimony)

with Tr.

functional

and certainly not

Compare
212-219

(Ms.

Tr.

4 6-66

Skinner's

written testimony). As discussed above, the ALJ provided clear and
convincing reasons to reject the plaintiff's credibility, and these
reasons are equally applicable to Ms.

Skinner's testimony.

ALJ's decision is affirmed as to this issue.

Page 12 - OPINION AND ORDER

The

III. Medical Opinion Evidence
Plaintiff asserts that the ALJ failed to provide a legally
sufficient reason, supported by substantial evidence, to reject the
opinion of Dr.

Wicher regarding plaintiff's activities of dally

living and social limitations. Pl.'s Br. 25. There are three types
of acceptable medical opinions in Social Security cases: those from
treating, examining, and non-examining doctors. Lester v. Chater,
81 F.3d 821, 830 (9th Cir. 1995). In resolving ambiguities in the
medical record, an ALJ may reject the uncontradicted opinion of a
treating

doctor

by

providing

clear

and

convincing

reasons,

supported by substantial evidence; the contradicted opinion of a
treating

doctor

may

be

rejected

by

providing

specific

and

legitimate reasons that are supported by substantial evidence. Orn
v. Astrue,

495 F.3d 625,

631-32

(9th Cir.

2007). When evaluating

medical opinions, an ALJ is not required to accept an opinion that
is

brief,

conclusory,

and

inadequately

supported

by

objective

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

December

2010,

Dr.

Wicher

completed

a

comprehensive

pyschodiagnostic evaluation of plaintiff. Tr. 697-702. Based on a
clinical interview, Dr. Wicher diagnosed plaintiff with antisocial
personality

disorder

and

borderline

personality

disorder,

and

observed symptoms which may support a diagnosis of panic disorder.
Tr.

7 01.

Dr.

Wicher

reported

that

plaintiff

moderate deficits in social functioning,

Page 13 - OPINION AND ORDER

appeared

to

have

"based on her difficulty

controlling anger, history of aggression toward others, and current
social

insolation." Tr.

702.

Dr.

Wicher noted that plaintiff's

affect, "which was fairly bright," was also "inconsistent with her
description of her activities of daily living and other symptoms of
depression." Id. Additionally, Dr. Wicher reasoned that plaintiff's
description of mood swings and difficulty controlling her anger
were symptoms better accounted for by her underlying personality
structure,

characterized by antisocial personality disorder and

borderline personality disorder.

Id.

Although plaintiff's self-

reports raised the question of whether she may suffer from major
depressive disorder, Dr. Wicher ultimately concluded that plaintiff
did not report sufficient symptoms during the evaluation to support
that diagnosis. Id.

Dr. Wicher found that, despite being diagnosed

with bipolar disorder since the age of eight, plaintiff's records
did not clearly "report a history which is conclusive for [bipolar
disorder]." Id.
According to Dr. Wicher, plaintiff's deficit in concentration,
persistence,

and pace

was moderate,

although her pace was

not

obviously impaired and her persistence "appeared to be limited by
a tendency to give up quickly." Id.
mental

evaluation,

inconsistent

mental

Dr.

Wicher

status

With regard to plaintiff's

noted

test

that,

results,

because

determining

of

the

whether

plaintiff put forth satisfactory effort was difficult. Tr. 700-702.
Finally,

Dr.

Wicher

reported

Page 14 - OPINION AND ORDER

that

plaintiff's

self-described

moderate

deficits

in

social

functioning

were

the

psychological barriers to her returning to full-time,

primary
sustained

employment. Tr. 702.
The ALJ gave some weight to Dr. Wicher's testimony.
Specifically,

the ALJ

found

that

Dr.

Wicher' s

Tr.

26.

opinion did not

suggest plaintiff would be incapable of performing the determined
residual functional capacity. To the extent that the ALJ rejected
Dr. Wicher's opinion,

she did so because Dr. Wicher had concerns

about plaintiff's effort during the exam and because Dr.
noted

that

plaintiff's

affect

was

inconsistent

with

Wicher

her

own

descriptions of daily living. Tr. 26, 702. An ALJ may afford less
weight to a treating physician's opinion that is inconsistent with
the

claimant's

activities

of

daily

living

or

based

on

the

claimant's uncredible subjective symptom statements. Rollins, 261
F.3d at 853, 856; Tommasetti, 533 F.3d at 1035, 1041.
Dr. Wicher clearly noted her assessment of plaintiff's ability
to perform activities of daily living was premised on plaintiff's
uncredible

sel£-~eports.

Although Dr. Wicher noted that plaintiff's

description of daily living was inconsistent with her affect during
the exam, Dr. Wicher nevertheless based that portion of her opinion
on plaintiff's subjective complaints. Tr. 700-702. In sum, because
Dr.

Wicher' s

opinion

was

inconsistent

with

other

evidence

of

record, including portions of her own assessment, the ALJ provided
specific and legitimate reasons, supported by substantial evidence,

Page 15 - OPINION AND ORDER

for affording less weight to Dr. Wicher's opinion.
Additionally,

the ALJ reasonably resolved that restricting

plaintiff to simple work with occasional contact with supervisors,
no contact with the general public, and only superficial contact
with co-workers was sufficient to account for Dr. Wicher 1 s opinion
regarding plaintiff's moderate deficits in social functioning. This
is

particularly

true

due

to

the

fact

that

"unskilled

ordinarily involve dealing primarily with objects."

SSR

jobs
85-15,

available at 1985 WL 56857. The ALJ correctly concluded that "the
objective medical evidence does not provide a basis for finding
limitations

greater

than

those

determined."

TR.

2 6.

The ALJ 1 s

assessment of the medical opinion evidence is affirmed.
IV. Residual Functional Capacity Determination
Plaintiff asserts that the ALJ erred in formulating her RFC,
and, by extension, at step five, failing to account for all of the
limitations identified in her testimony, the lay witness testimony,
and Dr.

Wicher' s

evaluated
reports,

this

report.

evidence.

there

is

no

As

discussed above,

Further,

indication

outside
that

of

she

the ALJ properly
plaintiff's

suffers

from

self
anger

outbursts that would interfere with her ability to work, especially
in

light

involving

of
no

Accordingly,

the

fact

public

that

the ALJ limited her

contact

plaintiff 1 s

and

argument,

limited
which

is

to

occupations

coworker
contingent

contact.
upon

a

finding of harmful error in regard to the issues above, is without

Page 16 - OPINION AND ORDER

merit. Bayliss, 427 F.3d 1211 at 1217-18. Further, the Court notes
that unskilled jobs, like those identified by the VE in response to
the dispositive hypothetical given by the ALJ, primarily involve
[working] with objects rather than people. Weber v. Astrue, 2012 WL
566564, *3 (D.Or. Feb. 21, 2012)

(citations omitted). The ALJ's RFC

and step five finding are affirmed.
CONCLUSION

For

the

reasons

set

forth

above,

the

decision

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

4

day of June 2015.

Ann Aiken
United States District Judge

Page 17 -OPINION AND ORDER

of

the