Wolf v. Commissioner Social Security Administration

Filing 12

Opinion and Order: The Commissioner's final decision is Affirmed. Ordered by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ANITA WOLF,

Plaintiff,

Civ. No. 3:14-cv-01507-MC
OPINION AND ORDER

v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security
Administration,

Defendant.

MCSHANE, Judge:

Plaintiff Anita Wolf brings this action for judicial review of a final decision of the
Commissioner of Social Security denying her application for disability insurance benefits (DIB)
under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g)
and 1383(c)(3).
The issues before this Court are: (1) whether the Administrative Law Judge (ALJ) erred
in evaluating the medical opinions of Drs. MacNeal, Clements, and Movius; (2) whether the ALJ
erred in evaluating plaintiffs credibility; (3) whether the ALJ erred in evaluating a lay witness's
credibility; and (4) whether additional evidence submitted to the Appeals Council undermines
the evidentiary basis for the ALI's findings. Because the ALJ articulated sufficient reasons
supported by substantial evidence in his evaluation of the

respe~tive

evidence and, to the extent

that he erred, such errors were harmless, the Commissioner's decision is AFFIRMED.
PROCEDURAL AND FACTUAL BACKGROUND

1 -OPINION AND ORDER

Plaintiff applied for DIB on June 11,2009, alleging disability since January 1, 2006. Tr.
91, 109, 199-202. This claim was denied initially and upon reconsideration. Tr. 91, 141---42,
145---48, 151-53. Plaintiff timely requested a hearing before an Administrative Law Judge (ALJ)
and appeared before the Honorable Jo Hoenninger on October 2, 2012. Tr. 91, 103---40. ALJ
Hoenninger denied plaintiffs claim by a written decision dated October 26, 2012. Tr. 91-98.
Plaintiff sought review from the Appeals Council, which was subsequently denied, thus
rendering the ALI's decision final. Tr. 5-8. Plaintiffnow seeks judicial review.
Plaintiff, born on September 21, 1959, tr. 97, 109, 135, obtained her Bachelor of Science
degree, tr. 111, 220, and worked most recently as a registered nurse (1989-2009), tr. 112, 20305. Plaintiff was forty-six at the time of alleged disability onset and fifty-three at the time of her
hearing. See tr. 97, 109, 135. Plaintiff alleges disability due to obesity and degenerative disk
disease ofthe lumbar spine. See tr. 93, 108.

STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner's decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence on the record.
See 42 U.S.C. § 405(g); Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). To determine whether substantial evidence exists, this Court reviews the administrative
record as a whole, weighing both the evidence that supports and that which detracts from the
ALI's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

DISCUSSION
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520,416.920. The initial burden ofproofrests
2 - OPINION AND ORDER

upon the claimant to meet the first four steps. If a claimant satisfies his or her burden with
respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F .R. §
404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable
of making an adjustment to other work after considering the claimant's residual functional
capacity (RFC), age, education, and work experience. Id.
Plaintiff contends that the ALJ' s disability decision is not supported by substantial
evidence and is based on an application of incorrect legal standards. In particular, plaintiff argues
that: (1) the ALJ erred in evaluating the medical opinions of Drs. MacNeal, Clements, and
Movius; (2) the ALJ erred in evaluating plaintiffs credibility; (3) the ALJ erred in evaluating a
lay witness's credibility; and (4) additional evidence submitted to the Appeals Council
undermineS the evidentiary basis for the ALJ' s findings.

I. Medical Opinions
Plaintiff contends that the ALJ erred in evaluating: a letter submitted by treating
physician Dr. MacNeal, see tr. 292; functional limitations identified by examining physician Dr.
Clements, see tr. 372-77; and a physical ability assessment form submitted by treating physician
Dr. Movius, see tr. 358-62. In response, defendant argues that the ALJ provided sufficient
reasons for according "significant weight" to Dr. MacNeal's letter and partially rejecting the
functional limitations identified by Dr. Clements. See Def.'s Br. 5-9, ECF No. 10. Defendant
also argues that the ALJ' s failure to address functional limitations identified by Dr. Movius
constitutes a harmless error. See id. at 9-10.
"To reject an uncontradicted opinion of a treating or examining doctor, an ALJ must state
clear and convincing reasons that are supported by substantial evidence." Bayliss v. Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chafer, 81 F.3d 821, 830-31 (9th Cir.
3 -OPINION AND ORDER

1995)). "If a treating or examining doctor's opinion is contracted by another doctor's opinion, an
ALJ may only reject it by providing specific and legitimate reasons that are supported by
substantial evidence." !d. (citation omitted). When evaluating conflicting medical opinions, an
ALJ need not accept a brief, conclusory, or inadequately supported opinion.Id. (citing

Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)).
A. Dr. MacNeal
Plaintiff met with Nancy J. MacNeal, M.D., more than fifteen times between March 2005
and August 2012. 1 On or about September 23, 2009, Dr. MacNeal submitted a letter responding
to an agency request for information relating to plaintiffs functional limitations. In that letter,
Dr. MacNeal explained:
[I]t is this examiner's opmwn that the only problem [plaintiff] has is
standing for long durations over an operating table which produces low
back pain. Mrs. Wolf absolutely refuses to use narcotics while on the job,
[and] isn't interested in retraining for a different position. While I am
sympathetic to her problem of chronic back pain, there are many, many
other people I attend who manage to hold down more physically
challenging positions tha[ n] her position. There are positions that she
could do within her own profession with her current limitation that she has
decided she doesn't want to pursue, one example would be a sit down job
as a triage nurse. I was frankly shocked that her employer's long term
disability plan accepted her claim. After attending her for over 4 years, I
see a woman who makes up her mind that this is how it is going to be and
will not back down until she gets what she wants. It is very difficult to get
her to open her mind and look at other options.
Tr. 292; see also tr. 308, 395 (In a treatment note dated December 26, 2006, Dr. MacNeal
reported that she didn't "frankly see why [plaintiff] couldn't find a sedentary job in nursing like
so many others and get a strong sense that she doesn't want to work if it means she needs to take
1

Tr. 295-98, 402-05 (3/30/2005); tr. 298-99, 400-01, 491-92 (1 0/31/2005); tr. 300-02, 398-400 (2/1 0/2006); tr.
303-04, 397-98 (3/15/2006); tr. 305-07, 396-97 (7/10/2006); tr. 396 (10/9/2006); tr. 308-09, 394-95 (12/26/2006);
tr. 310-12, 392-94 (5/22/2007); tr. 313-15, 388-90 (8/18/2008); tr. 316-17, 387-88 (1115/2009); tr. 318-19, 38687 (7/22/2009); tr. 383-85,493-95 (1/5/2010); tr. 496-98 (211/2011); tr. 499 (12/14/2011); tr. 490-92,500
(6/1112012); tr. 487-89, 501-03 (8/27/2012).

4- OPINION AND ORDER

med[ications] for back pain."). The ALJ, having reviewed this letter, gave "Dr. MacNeal's
opinion significant weight" because it was based upon an extended treatment relationship,
supported by medical signs and laboratory findings, and was consistent with the record. Tr. 95.
Plaintiff contends that Dr. MacNeal engaged in "only cursory examinations" of plaintiffs
back prior to submission of the letter and that the medical signs and laboratory findings did not
support the letter. See Pl.'s Br. 5-6, ECF No. 9. This Court is not persuaded.
Prior to submitting the letter, Dr. MacNeal treated plaintiff approximately eleven times.
See supra § I(A) n.1. Physical examination results between March 2005 and August 2008

revealed normal DTRs, gait, motor tone, and sensory screening exam. See tr. 296, 404
(3/30/2005); tr. 311, 393 (5/22/2007); tr. 314, 389 (8/18/2008); see also tr. 308, 295 (In a
treatment note dated December 26, 2006, Dr. MacNeal reported that plaintiff "walk[ed] in
unassisted."). In addition to these examinations, Dr. MacNeal also reviewed "plain films 1-spine
and pelvis of3/3/06 done at PPMC showing mild disk space narrowing L5-S1 and [normal]
pelvis." Tr. 303, 397; see also tr. 279-80 (PPMC records dated 3/3/2006). These examination
results, which constitute substantial evidence, can reasonably be interpreted to support Dr.
MacNeal's letter.
Plaintiff next contends that Dr. MacNeal's letter is contradicted by a subsequent
statement dated December 11, 2012. See Pl.'s Br. 6, ECF No.9. That statement provided:
I have had the honor of attending nurse Wolf since 2005 [and] can attest to
her inability/disability to hold down a job as a nurse because of chronic
pain. Loss of her vocation [and] chronic pain have resulted in depression.
Unfortunately I don't see this situation changing in the foreseeable future;
surgery not felt to be an option.

5 -OPINION AND ORDER

Tr. 84. The Appeals Council determined that this statement reflected a "later time" and did not
"affect the decision about whether [plaintiff was] disabled beginning on or before October 26,
2012." Tr. 6. This determination was reasonable?
Although not discussed by plaintiff, this Court notes that Dr. MacNeal submitted a
lumbar spine medical source statement dated July 31,2013. See tr. 77-80. 3 That medical spurce
statement, unlike the earlier statement dated December 31, 2012, relied on additional clinical
findings; an MRI dated March 4, 2013. See tr. 77 (citing tr. 81-82). Nonetheless, the Appeals
Council reasonably determined that this medical source statement did not affect the ALJ' s
decision during the alleged disability period. See tr. 6.
B. Dr. Clements

Plaintiff met with Christopher Clements, M.D., for a thirty-minute physical examination
on October 24, 2009. See tr. 372-77. As a result of that examination and review of additional
medical records, 4 Dr. Clements opined that plaintiff was able to: sit for up to six hours; stand and
walk up to two hours; lift and carry less than 10 pounds frequently; climb, stoop, kneel, crouch,
and crawl occasionally; balance frequently; and reach, handle, finger, and feel frequently. Tr.
376.

2

Plaintiff met with Dr. MacNeal five additional times between September 2009 and December 2012. See tr. 383-85,
493-95 (1/5/2010); tr. 496-98 (2/1/2011); tr. 499 (12/14/2011); tr. 490-92,500 (6/11/2012); tr. 487-89,501-03
(8/27/20 12). During this treatment, Dr. MacNeal administered two relevant physical examinations. See tr. 384, 494
(1/5/2010); tr. 496-98 (2/1/2011). Relevant examination results in 2010 were normal. See tr. 384,494. However, in
2011, for the "first time," Dr. MacNeal "noticed that when [plaintiff] lays down on the table, she presses proximal
thighs away from her hips using her hands and she explains that these are much more comfortable." Tr. 497. This
single obs-ervation during the alleged disability period is insufficient to create ambiguity as to whether Dr.
MacNeal's December 2012 statement applies retroactively. See also tr. 448 (On December I, 2010, Neal E. Berner,
M.D., concluded that plaintiff was able to perform light work.).
3
This Court notes that Dr. MacNeal declined to complete similar disability paperwork in 2006. See tr. 395 ("' do
find it curious that [plaintiff] asked me to complete [the disability forms] rather than Dr. Movius the back
specialist.").
4
Dr. Clements reviewed Dr. MacNeal's treatment records, an MRl taken in August 2004, and plain film taken at
PPMC in March 2006. See tr, 372.

6- OPINION AND ORDER

The ALJ rejected these functional limitations to the extent they differed from the RFC 5
because they were inconsistent with Dr. MacNeal's letter dated September 23, 2009, and with
observations included in a Cooperative Disability Investigation Unit (CDIU) report dated April
13, 2010. See tr. 96.
As discussed above, Dr. MacNeal's letter dated September 23, 2009, was supported by
substantial evidence. See supra § I(A). Because it was written by Dr. MacNeal, who is a treating
physician, it is accorded more weight than functional limitations opined by Dr. Clements, who is
an examining physician. See Ghanim v. Colvin, 763 F.3d 1154, 1160-61 (9th Cir. 2014).
Moreover, the CDIU report, which was based on a forty-minute interview that occurred after the
physical examination, included observations that were largely inconsistent with Dr. Clements's
findings. Compare tr. 376 ("Maximum lifting and carrying capacity is less than 10 pounds both
occasionally and frequently ... ."),with tr. 241 (reporting that plaintiff dragged her forty-pound
puppy "across the living room, down the central hallway, through the kitchen/dinette to the
sliding door onto the rear deck"); see also infra§ II (discussing the CDIU report). These reasons
are specific and legitimate.
In any event, an error is harmless if "inconsequential to the ultimate nondisability
determination." Stout v. Comm 'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). During
the administrative hearing, the ALJ posed an alternative hypothetical question to the vocational
expert (VE) that incorporated Dr. Clements's opined limitations. That hypothetical provided:
I'd like you to assume a hypothetical individual limited to sedentary work.
Can lift 10 pounds both occasionally and frequently, can climb ramps and
... stairs only occasionally .... Can climb ladders, ropes and scaffolds
never, can only occasionally stoop, kneel, crouch and crawl, can balance
frequently, reaching hand and fingering feeling frequently. And for this,
5

The ALI found that plaintiff was able "to perform the full range of light work." Tr. 94.

7- OPINION AND ORDER

for your response to this, please provide occupations for which there are
transferrable skills from claimant's past job.
Tr. 133-34. The VE testified that such a claimant could work as a consultant nurse (DOT§
075.1127-014), an occupation that exists in significant numbers in the national economy. See tr.
97-98, 133-34. Thus, even had an error been committed, such an error was harmless.
C. Dr. Movius's Opinion

Plaintiff self-referred to Rosalie Movius, M.D., LLC, for nonsurgical management of
back problems. See tr. 300, 398. Plaintiff met with Dr. Movius approximately ten times between
January and October 2006. 6 On October 26, 2006, Dr. Movius submitted a physical ability
assessment form on plaintiffs behalf. See tr. 361-62. In that form, Dr. Movius opined that
plaintiff was able to sit, stand, and walk occasionally, lift 20 pounds occasionally and 10 pounds
frequently, and carry 20 pounds occasionally. See id. Dr. Movius also opined that plaintiff should
never balance, stoop, crouch, or crawl. Tr. 361. These limitations were based on an MRl taken in
August 2004, plain film taken at PPMC in March 2006, and physical examinations administered
during treatment. See tr. 359.
Plaintiff contends that the ALJ committed a harmful error when he failed to address this
assessment form. See Pl.'s Br. 7-8, ECF No.9. In response, defendant argues that the alternative
hypothetical question posed by the ALJ to the VE was "consistent" with Dr. Movius's opined
limitations, and to the extent they differed, such differences in limitations did not impact
plaintiffs ability to work as a consultant nurse (DOT§ 075.1127-014). See Def.'s Br.9-10,
ECFNo. 10.

6

Tr. 290 (1/18/2006); tr. 287-89 (l/25/2006); tr. 285-86 (l/30/2006); tr. 283-84 (2/8/2006); tr. 277-78 (4/21/2006);
tr. 370 (7/25/2006); tr. 369 (8/16/2006); tr. 368 (8/29/2006); tr. 365-66 (10111/2006); tr. 363 (10/27/2006).

8 - OPINION AND ORDER

As discussed above, the ALJ posed a more restrictive alternative hypothetical question to
the VE. See supra § I(B). Because that alternative hypothetical question incorporated most of Dr.
Movius's opined limitations, this Court's inquiry is limited to whether the ALJ's inclusion of
less restrictive postural limitations--occasional stooping, crouching and crawling, and frequent
balancing-is consequential to the ultimate nondisability

de~ermination.

Compare tr. 361

(prohibiting balancing, stooping, crouching, and crawling), with tr. 133-34 (limiting hypothetical
I

claimant to frequent balancing, and occasional stooping, crouching and crawling).
The occupation at issue, consultant nurse, is defined in the DOT as skilled sedentary
work. DOT§ 075.127-014. Although postural activities "are not usually required in sedentary
work," SSR 96-9P, 1996 WL 374185, at *7 (July 2, 1996), a complete prohibition on such
activities may impact an individual's ability to perform sedentary work, see SSR 85-15, 1985
WL 56857, at *7 (Jan. 1, 1985) ("Some stooping (bending the body downward and forward by
bending the spine at the waste) is required to do almost any kind of work." (emphasis added)).
The duties of a consultant nurse are described as follows:
Advises hospitals, schools of nursing, industrial organizations, and public
health groups on problems related to nursing activities and health services:
Reviews and suggests changes in nursing organization and administrative
procedures. Analyzes nursing techniques and recommends modifications.
Aids schools in planning nursing curriculums, and hospitals and public
health nursing services in developing and carrying out staff education
programs. Provides assistance in developing guides and manuals for
specific aspects of nursing services. Prepares educational materials and
assists in planning and developing health and educational programs for
industrial and community groups. Advises in services available through
community resources. Consults with nursing groups concerning
professional and educational problems. Prepares or furnishes data for
articles and lectures. Participates in surveys and research studies.

9 - OPINION AND ORDER

DOT§ 075.127-014. This description does require any stooping, crouching, crawling, or
balancing. 7 Even assuming that limited postural activities could be inferred, this Court is not
persuaded that Dr. Movius's assessment form is inconsistent with such inferred postural
activities. The assessment form itself suggests that Dr. Movius did not intend to prohibit all
balancing, stooping, crouching, and crawling as defined by the Social Security Administration.
For example, Dr. Movius authorized plaintiff to return to work as a registered nurse (DOT§
075.364-010), 8 which is medium skilled work, on a part-time basis. See tr. 132, 360. Plaintiff
reported that in that role she regularly engaged in postural activities, e.g., crouching and
crawling, and spent extended periods of time walking and standing. See tr. 116, 21 7. If Dr.
Movius had intended to adhere to the Social Security Administration's definition ofbalancing,
stooping, crouching, and crawling, he could not have prohibited these postural activities and
authorized plaintiff to return to work as a registered nurse. Thus, the ALJ's failure to address Dr.
Movius's assessment form constitutes a harmless error.

II. Plaintifrs Credibility

7

This Court notes that plaintiff made no argument as to whether the duties of a consult.ant nurse included postural
activities.
8
DOT§ 075.364-010 describes the duties of"Nurse, General Duty" as follows:
Provides general nursing care to patients in hospital, nursing home, infirmary, or similar
health care facility: Administers prescribed medications and treatments in accordance
with approved nursing techniques. Prepares equipment and aids physician during
treatments and examinations of patients. Observes patient, records significant conditions
and reactions, and notifies supervisor or physician of patient's condition and reaction to
drugs, treatments, and significant incidents. Takes temperature, pulse, blood pressure, and
other vital signs to detect deviations from normal and assess condition of patient. May
rotate among various clinical services of institution, such as obstetrics, surgery,
orthopedics, outpatient and admitting, pediatrics, and psychiatry. May prepare rooms,
sterile instruments, equipment and supplies, and hand items to SURGEON (medical ser.)
070.101-094; OBSTETRICIAN (medical ser.) 070.101-054, or other medical
practitioner. May make beds, bathe, and feed patients. May serve as leader for group of
personnel rendering nursing care to number of patients.

10 - OPINION AND ORDER

Plaintiff contends that the ALJ improperly rejected her testimony. See Pl.'s Br. 9-13,
ECF No.9. In response, defendant argues that the ALJ properly weighed plaintiffs testimony.
See Def.'s Br. 10-15, ECF No. 10.
An ALJ must consider a claimant's symptom testimony, including statements regarding

pain and workplace limitations. See 20 CFR §§ 404.1529, 416.929. "In deciding whether to
accept [this testimony], an ALJ must perform two stages of analysis: the Cotton analysis and an
analysis of the credibility of the claimant's testimony regarding the severity ofher symptoms."
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). If a claimant meets the Cotton analysis 9

and there is no evidence of malingering, "the ALJ can reject the claimant's testimony about the
severity of her symptoms only by offering specific, clear and convincing reasons for doing so."
Id. (citing Dodrill v. Shalala, 12 F.3d 915,918 (9th Cir. 1993)). This Court "may not engage in

second-guessing," Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citations omitted),
and "must uphold the ALJ's decision where the evidence is susceptible to more than one rational
interpretation," Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (citations omitted).
The ALJ found that plaintiff was "a less than credible witness." Tr. 96. In making this
determination, the ALJ relied on two bases, including: ( 1) statements mad.e by treating physician
Dr. MacNeal; and (2) plaintiffs activities of daily living. See tr. 96-97.
First, as to statements made by Dr. MacNeal, the ALJ found:
Dr. M[a]cNeal[] opined that the claimant's physical impairments would
not preclude her from work in her field, and described the claimant as a
person "who makes up her mind that this is how it is going to be and will
not back down until she gets what she wants. It is very difficult to get her
to open her mind and look at other options[.]" Dr. M[a]cNeal stated in
9

"The Cotton test imposes only two requirements on the claimant: (1) she must produce objective medical evidence
of an impairment or impairments; and (2) she must show that the impairment or combination of impairments could
reasonably be expected to (not that it did in fact) produce some degree of symptom." Smolen, 80 F. 3d at 1282 (citing
Cotton v. Bowen, 799 F.2d 1403, 1407-408 (9th Cir. 1986)).

11 -OPINION AND ORDER

2006 that she found it "curious" that the claimant asked her to complete
disability forms rather than the back specialist, and "I don't frankly see
why she couldn't find a sedentary job in nursing likes so many others and
get a strong sense that she doesn't want to work if it means she needs to
take med[ications] for back pain[.]"
Tr. 96 (citations omitted). An ALJ may rely on a treating physician's opinion to form the basis of
an adverse credibility determination. See 20 C.P.R.§§ 404.1529(c)(3); 416.929(c)(3). As
discussed above, the ALJ properly evaluated a letter submitted by Dr. MacNeal in 2009. See
supra§ I(A). In that letter, as in various treatment notes, Dr. MacNeal questioned plaintiffs

willingness to seek alternative employment and concluded that plaintiffs impairment did not
prevent her from working in a sedentary nursing occupation. See tr. 395 (12/26/2006); tr. 292
(9/23/2009). As a result, this reason is clear and convincing ..
Second, the ALJ found that plaintiffs daily activities were not consistent with her alleged
degree of impairment. See tr. 96-97. The ALJ explained:
[T]he claimant testified that she can only sit for a few minutes, cannot
stand without leaning on something, and sits reclining about 10 hours a
day. The claimant testified that in her house she is able to walk from the
sofa to the bathroom and she often drops items she attempts to carry.
However, a [CDIU] report in April of2010 indicated that the claimant was
seen attempting to calm her dog by standing bent at the waist, flat-footed
on the floor, and then spending 2 minutes wrestling the forty pound dog
and pulling the dog across the floor like a sack of potatoes. The claimant
then sat on the sofa without restriction of movement, no frequent shifting
of position, and no verbal complaints of pain. The claimant walked with
no limping or irregularity of gai[t], was able to sit, bend, and pull an active
forty-pound dog through the house without difficulty or complaint. ... At
the hearing, I also observed the claimant opening the door to the hearing
room on her own, and walking and sitting without appearing to be under
the duress that she alleges causes her severe physical limitations.
Tr. 96 (citations omitted). An ALJ may rely on daily activities to form the basis of an adverse
credibility determination if those activities contradict a plaintiffs testimony or involve the
performance of physical functions that are transferable to a work setting. Orn v. Astrue, 495 F .3d
12- OPINION AND ORDER

625,639 (9th Cir. 2007); see also SSR 96-7P, 1996 WL 374186, at *5 (July 2, 1996) ("In
instances where the individual attends an administrative proceeding conducted by the
adjudicator, the adjudicator may also consider his or her own recorded observations of the
individual as part ofthe overall evaluation of the credibility ofthe individual's statements.").
Defendant contends that plaintiffs daily activities contradict her testimony. Def. 's Br. 11-15,
ECF No. 10. This Court looks to the record.
On October 2, 2012, plaintiff testified that she cannot sit for more than a few minutes,
cannot stand without leaning on something, and cannot walk farther than nominal distances, e.g.,
from her sofa to the bathroom. See tr. 118-19. Plaintiff also testified that because of her pain
level, which fluctuated between a five and ten on a ten-point scale, she sat in a reclined position
for about 10 hours each day. See tr. 118-20.
Plaintiffs functionality, as evidenced by plaintiffs observed daily activities, is
reasonably interpreted as greater than alleged. For example, the ALJ relied extensively on a
CDIU report dated April 13,2010. In that report, a Special Agent (SA) from the United States
Office of the Inspector General documented his observations of plaintiff during a forty-minute
contact interview. See tr. 235--44. The SA reported in relevant part: plaintiff "wrestl[ed]" with a
forty-pound yellow Labrador puppy for two minutes; plaintiff dragged the dog backwards by its
front paws across the living room, down the central hallway, through the kitchen/dinette to the
sliding door onto the rear deck, like a "sack of potatoes"; plaintiff sat facing the agent on a sofa
without any restriction of movement or frequent shifting of position; and plaintiff rose from her
seat on the sofa three separate times to leave the room, walking in a normal fashion without
using any kind of assistive device. See tr. 241--42. The SA also noted that plaintiff did not exhibit
any pain behavior during the interview. See id.; see also tr. 96 ("At the hearing [on October 2,
13 - OPINION AND ORDER

2012], [the ALJ] also observed the claimant opening the door to the hearing room on her own,
and walking and sitting without appearing to be under the duress that she alleges causes her
severe physical limitations."). The ALJ, having considered this evidentiary record, reasonably
determined that many of plaintiffs statements relating to functionality were inconsistent with her
observed daily activities; thereby undermining her credibility. See Sours v. Colvin, No. 6: 13-cv01528-SI, 2014 WL 4793894, at *6 (D. Or. Sept. 25, 2014) (concluding that an ALJ properly
relied upon a CDIU report to discount plaintiffs credibility).
III. Lay Witness's Credibility

Plaintiff contends that the ALJ improperly rejected functional limitations identified by
lay witness Larry Wolf. Pl.'s Br. 13-15, ECF No. 9. In response, defendant concedes error, 10 but
argues that such an error was harmless because the ALJ properly rejected plaintiffs similar
testimony. See Def.'s Br. 15-16, ECF No. 10.
"Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must
take into account, unless he or she expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)
(citation omitted); see also Merrill ex rei. 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." (citation omitted)). An ALJ's failure to articulate such a
germane reason is nonetheless harmless if that "testimony does not describe any limitations not
already described by the claimant, and the ALJ's well-supported reasons for rejecting the

10

This Court notes that Mr. Wolf indicated in a Jetter dated December 13,2012, that he did not believe he could be
objective when it came to plaintiff. See tr. 87 ("I guess I can't be objective.").

14- OPINION AND ORDER

claimant's testimony apply equally well to the lay witness testimony." See Molina v. Astrue, 674
F .3d 1104, 1117 (9th Cir. 20 12).
Mr. Wolf, plaintiffs husband, submitted a third-party function report on September 27,

2009, tr. 222-29; testified during plaintiffs administrative hearing on October 2, 2012, tr. 12831; and submitted an additional letter dated December 13, 2012, tr. 87. In the function report,
Mr. Wolf reported that plaintiff: had difficulties standing, tr. 223-24, 228; required an assistance
device when walking, e.g., plaintiffused "a [shopping] cart to support herself' while grocery
shopping, tr. 225; and had limitations in lifting, squatting, bending, reaching, kneeling, and stair
climbing, tr. 228. At the administrative hearing, Mr. Wolf again reported that plaintiff had
difficulties bending and standing, and required an assistance device when walking. See tr. 12930. In the letter, Mr. Wolf identified a number of"accommodations" made because of plaintiffs
functional limitations. See tr. 87. Those accommodations were consistent with Mr. Wolf's earlier.
reported observations. Compare tr. 87 ("I do literally all house and yard work. I drive her
wher[ever] she needs to go."), with tr. 224-25 ("I do or hire out for Indoor [and] outdoor chores .
. . . I do the driving."). Mr. Wolf's description of plaintiff's functional limitations is generally
similar to plaintiff's own testimony. Compare tr. 129-30, 223-25,228, with tr. 118-20. Thus,
even assuming an error had been committed, such an error was harmless. 11

IV. Additional Evidence
Plaintiff submitted additional evidence to the Appeals Council following receipt of the
ALI's written opinion. See tr. 23-87. That additional evidence includes the following: treatment

11

Plaintiffs friend, Joanne Peterson, also submitted a letter on plaintiffs behalf. See tc 85. In that letter, which was
dated December II, 2012, Ms. Peterson reported that plaintiffhad difficulties standing and walking, and was "now
at the point of needing adaptive equipment ... such as a walker, or a wheelchair or scooter for walking events." See
id. These observations, like those of Mr. Wolf, are generally similar to plaintiffs own testimony and were properly
rejected in the AU's consideration of plaintiffs own credibility.

15 - OPINION AND ORDER

records from the Laser Spine Institute between March 5, 2013, and September 17, 2013, tr. 2376; a lumbar spine medical source statement from treating physician Dr. MacNeal, tr. 77-80; a
letter dated December 11,2012, from treating physician Dr. MacNeal, tr. 84; a letter dated
December 11, 2012, from lay witness Ms. Petersen, tr. 85; a completed "Application for Parking
Permit for an Individual with a Disability," tr. 86; and a letter dated December 13, 2012, from
lay witness Mr. Wolf, tr. 87. Because the Appeals Council incorporated the additional evidence
into the administrative record and considered it in deciding not to review the ALJ's decision, this
Court must consider that evidence in determining whether the ALJ' s decision is supported by
substantial evidence. See Brewes v. Comm 'r of Soc. Sec. Admin., 682 F.3d 1157, 1159-60 (9th
Cir. 2012).
As discussed in previous sections, the additional lay witness evidence and Dr. MacNeal's
subsequent statements do not undermine the evidentiary basis for the ALJ' s findings during the
disability period: January 1, 2006, to October 26, 2012. See supra§§ I(A), III n.ll. This
reasoning also applies to plaintiffs subsequent treatment at the Laser Spine Institute. 12 Plaintiff
underwent two back surgeries in 2013. The first surgery, which occurred on March 5, 2013,
resulted in improvement. See, e.g., tr. 24, 64-65, 80. Plaintiff underwent additional MRI/CT and
lumbar spine x-rays in early September 2013. As a result of these findings, e.g., a disk bulge
above the level previously treated was identified at the L4/5 level, see tr. 23, plaintiff underwent
a second surgery on September 11, 2013, tr. 27-29. This subsequent treatment, which occurred
between five and eleven months after the ALJ' s decision, does not undermine the evidentiary
basis for the ALJ' s findings.

12

Tr. 31-36,49-55,59-60,69-74 (3/4/2013); tr. 42-48,57-58,61,75-76 (3/5/2015); tr. 66--68 (3/8/2015); tr. 65
(3111/2015); tr. 62-64 (3/22/2013); tr. 23-26 (9/10/2013); tr. 27-29 (9/11/2013).

16- OPINION AND ORDER

CONCLUSION

For these reasons, the Commissioner's final decision is AFFIRMED.

IT IS SO ORDERED.

DATED this _____lk_ day of July, 2015.

L- \
Michael J. McShane
United States District Judge

17- OPINION AND ORDER