Burkenbine v. Commissioner Social Security Administration

Filing 30

OPINION and ORDER - The Commissioner's decision is AFFIRMED and this case is hereby DISMISSED. IT IS SO ORDERED. DATED this 8th day of February, 2016, by United States Magistrate Judge John V. Acosta. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

TATYONNA R. BURKENBINE,

Case No. 3:14-cv-01539-AC

Plaintiff,

OPINION AND ORDER

vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

ACOSTA, Magistrate Judge:
Tatyonna R. Burkenbine ("plaintiff') seeks judicial review of a final decision by the
Commissioner of Social Security ("Commissioner") denying her application for Supplemental
Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). This court has
jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Based on a
careful review of the record, the Commissioner's decision is affirmed.

\\ \ \ \
Procedural Background

Plaintiff applied for SSI on January 27, 2011, alleging disability as of Janumy 1, 2008, due
to "stomach problems, mental health, asthma, and hormone imbalance." (Tr. 77.) Her application
was denied initially and upon reconsideration. (Tr. 85, 95.) A hearing convened on March 12, 2013,
before an Administrative Law Judge ("ALJ"). (Tr. 38-75.) On April 26, 2013, the ALJ issued a
decision finding plaintiff not disabled. (Tr. 11-31.) Plaintiff timely requested review of the ALJ' s
decision and, after the Appeals Council denied review, plaintiff filed a complaint in this court. (Tr.
1-3.)
Factual Background
Born on March 27, 199 5, plaintiff was 12 years old on the alleged onset date of disability and
an 18-year-old high school student at the time of the hem"ing. (Tr. 38, 40-41, 77 .) Because plaintiff
had not reached 18 yem·s of age by the alleged onset date, her disability was assessed using both the
child and adult standards of review.
Child Standard ofReview
For claimants under the age of 18, the Social Security Administration has established a threestep sequential evaluation process to determine whether the claimant is disabled. 20 C.F.R. §
416.924(a). At step one, the ALJ determines ifthe claimant is able to engage in substantial gainful
activity; if so the plaintiff is not disabled. At step two, the Commissioner resolves whether the
claimant has a "medically severe impairment or combination of impairments." 20 C.F.R. §
404.1520(c). For an individual who has not attained age 18, a medically determinable impaitment
or combination of impairments is not severe if it is a slight abnormality or a combination of slight
abnormalities that causes no more than minimal functional limitations. If the claimant does not have
a medically determinable severe impaitment, the claimant is not disabled.
Page 2 - OPINION AND ORDER

If the evaluation proceeds to step three, the Commissioner must determine whether the

claimant has an impairment or combination of impahments that meets or functionally equals the
Listings. In determining whether an impairment or combination of impairments equals a Listing,
the Commissioner must assess the claimant's functioning in terms of six "domains": (1) acquiring
and using information; (2) attending and completing tasks; (3) interacting and relating with others;
(4) moving about and manipulating objects; (5) self care; and (6) health and physical well-being.
The Commissioner must compare how appropriately, effectively, and independently the
claimant performs activities compared to the performance of other children of the same age who do
not have impairments. To functionally equal the listings, the claimant's impahment or combination
of impairments must result in "marked" limitations in two domains of functioning or an "extreme"
limitation in one domain. 20 C.F.R. § 416.926a(d).
In assessing whether the claimant has "marked" or "extreme" limitations, the Commissioner
must consider the functional limitations from all medically detetminable impairments, including any
impairments that are not severe, as well as the interactive and cumulative effects of the claimant's
impairment(s) in any affected domain. 20 C.F.R. § 416.926a(a). A claimant has a "marked"
limitation in a domain when her impairment(s) "interferes seriously" with the ability to
independently initiate, sustain, or complete activities. Day-to-day functioning may be seriously
limited when the impairment(s) limits only one activity or when the interactive and cumulative
effects of the impairment(s) limit several activities. 20 C.F.R. § 416.926a(e)(2).
A "marked" limitation is:
(!) A limitation that is "more than moderate" but "less than extreme."

(2) The equivalent of functioning that would be expected on standardized testing
Page 3 - OPINION AND ORDER

with scores that are at least two, but less than three, standard deviations below the
mean.
(3) A valid score that is two deviations or more below the mean, but less than three
standard deviations, on a comprehensive standardized test designed to measure
ability or functioning in that domain, and her day-to-day functioning in domainrelated activities is consistent with that score.
(4) For the domain of health and physical well-being, frequent episodes of illness
because of the impairment(s) or frequent exacerbations of the impairment( s) that
results in significant, documented symptoms or signs that occur: (a) on an average
of three times per year, or once every four months, each lasting two weeks or more;
(b) more often that three times per year or once every four months, but not lasting
two weeks; or (c) less often than an average of three times per year or once eve1yfour
months but lasting longer than two weeks, if the overall effect (based on the length
of the episode(s) or its frequency) is equivalent in severity.

Id
A claimant has an "extreme" limitation in a domain when her impahment(s) interferes "very
seriously" with her ability to independently initiate, sustain, or complete activities. Day-to-day
functioning may be very seriously limited when her impairment(s) limits only one activity or when
the interactive and cumulative effects of her impairment(s) limit several activities. 20 C.F.R. §
416.92a(e)(3).
An "extreme" limitation is:

(I) A limitation that is more than "marked."
(2) The equivalent of functioning that would be expected on standardized testing
with scores that are at least three standard deviations below the mean.
(3) A valid score that is three standard deviations or more below the mean on a
comprehensive standardized test designed to measure ability or functioning in that
domain, and her day-to-day functioning in domain-related activities is consistent with
that score.
(4) For the domain of health and physical well-being, episodes of illness or
exacerbations that result in significant, documented symptoms or signs substantially

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in excess of the requirements for showing a "marked" limitation.
Id
Adult Standard ofReview

The court must affirm the Commissioner's decision if it is based on proper legal standards
and the findings are suppmied by substantial evidence in the record. Hammockv. Bowen, 879 F.2d
498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. 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 cmnimustweigh

"both the evidence that suppmis and detracts from the [Commissioner's] conclusions." Martinez
v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can suppoti either

a grant or a denial, [a comi] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue,
486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).
The initial burden ofproofrests upon the claimantto establish disability. Howardv. 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 can be expected ... to last for a continuous period of not less
than 12 months." 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 42 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First, the
Commissioner determines whether a claimant is engaged in "substantial gainful activity;" if so, the
claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b).
At step two, the Commissioner resolves whether the claimant has a "medically severe
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impairment or combination ofimpairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c).
If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.

At step three, the Commissioner evaluates whether the claimant's impairment meets or
equals "one of a number of listed impairments that the Secretary acknowledges are so severe as to
preclude substantial gainful activity." Id; 20 C.F.R. § 404.1520( d). If so, the claimant is presumed
disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant still can perfmm "past
relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. § 404. l 520(f). If the claimant can work, she
is not disabled; if she cannot perf01m past relevant work, the bmden shifts to the Commissioner.

Yuckert, 482 U.S. at 141.
At step five, the Commissioner must establish that the claimant can perform other work
existing in significant numbers in the national or local economy.

Id at 142; 20 C.F.R. §

404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §
404.1566.
The ALJ's Findings
As a threshold matter, the ALJ found plaintiff was in the "Adolescents (age 12 to attainment
of age 18)" age group on January 27, 2011, the date the application was filed. (Tr. 15.) The plaintiff
attained age 18 on March 26, 2013. Id
At step one of the three-step sequential child evaluation process, the ALJ found plaintiff had
not engaged in substantial gainful activity since the application date. Id At step two, the ALJ found
plaintiff, before attaining age 18, had the following severe impairments: anxiety disorder, dysthymic
disorder, somatofonn disorder, and gastritis/duodenitis. (Tr. 16.)
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At step three, the ALJ found that before attaining age 18, the plaintiff did not have an
impairment or combination of impairments that met or medically equaled one of a number of
impairments that are so severe as to preclude substantial gainful activity. (Tr. 17.)
Fmiher, the ALJ found that before attaining age 18, the plaintiff did not have an impairment
or combination of impairment(s) that functionally equaled the listings, based on the following
findings: before attaining age 18, the plaintiff had (a) no limitation in acquiring and using
infotmation; (b) less than marked limitation in attending and completing tasks; (c) less than marked
limitation in interacting and relating with others; (d) less than marked limitation in moving about and
manipulating objects; (f) less than marked limitation in the ability to care for herself; and (g) less
than marked limitation in health and physical well-being. (Tr. 22-27.) Accordingly, the ALJ found
plaintiff was not disabled prior to age 18. (Tr. 27.)
The ALJ continued to evaluate plaintiff using the adult standard of review. The ALJ found
plaintiff had not developed any new impairment or impairments since attaining age 18. Id. The
ALJ's child step one finding was carried over into the adult analysis. See (tr. 15). At step two, the
ALJ found that since attaining age 18, plaintiff continued to have severe impairments or combination
of impairments. Id. At step three, the ALJ found plaintiffs impairment( s) did not meet or equal the
requirements of a listed impairment under 20 C.F.R. Pt. 404, Subpt. P, App. 1. (Tr. 28.)
Accordingly, the ALJ continued the sequential evaluation process to determine how
plaintiffs medical limitations affected her ability to work. The ALJ resolved that plaintiff had the
following residual functional capacity ("RFC"):
... [she can] perform a full range of work at all exertional levels[,]
but with the following nonexertional limitations: a restriction of
frequent interaction with coworkers or supervisors and the ability to
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remember, understand, and carry out instructions and tasks generally
associated with an SVP of 1 to 4.
(Tr. 28.)
At step four, the ALJ found plaintiff had no past relevant work. Id. At step five, the ALJ
determined plaintiff had the RFC to perform unskilled work at all exertional demand levels. (Tr.
30.) Therefore, the ALJ concluded plaintiff was not disabled under the Act. (Tr. 31.)

Discussion
Plaintiff argues the ALJ erred by erroneously discrediting: (1) plaintiffs symptom testimony;
(2) treating physician Shannon Brigman, M.D.; and (3) lay witness testimony of plaintiffs mother
and schoolteacher.

1

Plaintiffs Credibility
The Ninth Circuit relies on a two-step process for evaluating the credibility of a claimant's

testimony about the severity and limiting effect of the stated symptoms. Vasquez v. Astrue, 572
F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 503 F.3d 1028, 1035-36 (9th Cir.
2007)). "First, the ALJ must determine whether the claimant has presented objective medical
evidence of an underlying impairment which could reasonably be expected to produce the pain or
other symptoms alleged." Lingenfelter, 503 F.3d at 1036 (citation and quotation marks omitted).
Second, absent 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."

Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). Fmther, anALJ "may consider ... ordinary
techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent
statements concerning the symptoms, ... [or] other testimony that appears less than candid .... "

Page 8 - OPINION AND ORDER

Id. at 1284. However, a negative credibility finding made solely because the claimant's symptom
testimony "is not substantiated affirmatively by objective medical evidence" is legally insufficient.
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Nevertheless, the ALJ's credibility

finding may be upheld even if not all of the ALJ's rationales for rejecting claimant testimony are
upheld. See Batson, 359 F.3d at 1197.
Here, the ALJ found plaintiff's "testimony and allegations concerning her subjective
complaints and limitations were not convincing." (Tr. 21.) Specifically, the ALJ noted plaintiff's
symptom allegations were inconsistent with the medical record, she had unexplained gaps in
medical treatment, and did not always follow her physician's advice. (Tr. 20-21.) In suppoti of the
ALJ's first rationale, he noted "there were periods of relief from [plaintiff's] complaints ... in
February 2011, a chart notation recounted that the [plaintiff] felt improvement in her abdominal
pain and nausea to a significant extent using Zantac." (Tr. 20.) Although Dr. Brigman's February
28, 2011 chart note is consistent with the ALJ's finding, the plaintiff argues the ALJ failed to
account for her symptom complaints in contemporaneous visits, including a March 10, 2011 repoti
to Dr. Harris that plaintiff's abdominal pain prevented her from attending school for the previous
two weeks. (Tr. 370); Pl. 's Br. 21. Plaintiff fmiher argues that although her symptoms decreased
in April 2011, they resurfaced in May 2011. Pl.'s Br. 21. Plaintiff also reported abdominal pain
in January 2012, but Dr. Brigman noted it was unclear if plaintiff was taking her medications at the
time. (Tr. 467.) Plaintiff subsequently began taking her medication, and at a "well child check"
the following month, reported her pain was under better control. (Tr. 461.) Plaintiff then went ten
months without visiting Dr. Brigman's office until she returned in December 2012 for "stomach
trouble." (Tr. 20, 455.) Additionally, a December 2012 mental health assessment noted plaintiff's
Page 9 - OPINION AND ORDER

relationship with her mother was "troubled," and connected her stress with "more medical GI
problems." (Tr. 451.)
The ALJ summarized this evidence, and found plaintiffs problems waxed and waned
depending on her living situation. (Tr. 20.) The ALJ inferred that when plaintiff was taking her
medication as directed, her symptoms did not require visits to her physician. Id The ALJ also
noted plaintiff did not follow Dr. Brigman's advice relative to her mental impairments. (Tr. 21.)
Indeed, Dr. Brigman's January 31, 2012 chart note indicates plaintiff failed to follow-up with
counseling as planned. (Tr. 467.)
While plaintiff argues the ALJ' s conclusion was the result of"ignoring competent evidence
in the record that suggests the opposite result," the argument is unavailing as the ALJ's recitation
of the facts is accurate. Pl.'s Br. 21 (quoting Gallant v. Heckler, 753 F.3d 1450, 1456 (9th Cir.
1984)). The medical evidence supports the ALJ's finding that plaintiffs symptoms waxed and
waned. (Tr. 451.) Accordingly, the finding that plaintiff had gaps in her treatment, including a tenmonth gap, and appeared to improve when taking her prescribed medication, is a clear and
convincing reason to discredit her testimony of constant pain. See Tommasetti, 533 F.3d at 1039
(ALJ may consider unexplained or inadequately explained failure to seek treatment or follow
prescribed course of treatment). While plaintiff argues there are alternative explanations, the ALJ's
rationales are consistent with substantial evidence and therefore upheld. See Lewis, 498 F.3d at
911.
The ALJ further discredited plaintiffs testimony, in part, for her failure to attend therapy
despite directions to do so from Dr. Brigman. However, the Ninth Circuit does not recognize the
failure to seek treatment for mental impairments as a clear and convincing reason to impugn her
Page 10 - OPINION AND ORDER

credibility. See Garrison, 759 F.3 at 1018 n.24;Molinav. Astrue, 674 F.3d 1104, 1113-14 (9th Cir.
2012). Thus, the ALJ's rational was not valid.
The ALJ further found plaintiffs subjective complaints inconsistent with the objective
medical evidence. As explained, despite plaintiffs March 10, 2011 allegation ofinability to attend
school due to abdominal pain for the previous two weeks, Dr. Brigman repotted that just 12 days
earlier, plaintiff reported feeling significantly better with a new prescription. Compare (tr. 370) to
(tr. 448). While inconsistency with the medical record alone is not a valid reason to discredit
plaintiff, it was appropriate for the ALJ to consider the combination of lack of medical evidence as
well as gaps in treatment for her pain symptoms. To the extent the ALJ enoneously considered
plaintiffs failure to attend therapy as directed by Dr. Brigman, the ALJ' s overall credibility finding
is nonetheless valid based on the other reasons proffered. See Batson, 359 F.3d at 1197.
II.

Medical Opinion Evidence

A. Whether Plaintiff Meets a Child Listing
Plaintiff argues the ALJ failed to properly evaluate medical opinion evidence at step three.
Notably, Dr. Brigman authored a letter on March 8, 2013, asse1ting that plaintiff met Child Listing
112.07 for Somatoform disorder. (Tr. 470-71.) An ALJ is responsible for resolving ambiguities
and conflicts in the medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).
The ALJ must provide clear and convincing reasons for rejecting the uncontradicted medical
opinion of a treating or examining physician, or specific and legitimate reasons for rejecting
contradicted opinions, so long as they are suppotted by substantial evidence. Bayliss v. Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005). Nonetheless, treating or examining physicians are owed
deference and will often be entitled to the greatest, if not controlling, weight. Orn, 495 F.3d at 633
Page 11 - OPINION AND ORDER

(citation and internal quotation omitted). An ALJ can satisfy the substantial evidence requirement
by setting out a detailed summaty of the facts and conflicting evidence, stating his intetpretation,
and making findings. Morgan v. Comm 'r Soc. Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 1999).
However, "the ALJ must do more than offer his conclusions.

He must set forth his own

interpretations and explain why they, rather than the doctors', are con-ect." Reddick, 157 F .3d at
725 (citation omitted).

On this record, the treating and examining doctors' opinions are

contradicted by four state medical examiners. (Tr. 80-84, 89-93.) Accordingly, the ALJ' s reasons
for rejecting the treating and examining physicians must be specific and legitimate, and supported
by substantial evidence. See Garrison, 759 F.3d at 1012.
The ALJ considered Dr. Brigman's letter and agreed plaintiff met the requisite "A" criteria
under the Listing, but found plaintiff did not fulfill the "B" criteria. (Tr. 18.) Plaintiff contends she
has provided substantial evidence establishing the "B" criteria. Pl.'s Br. 16-17; Pl.'s Reply 2-8.
Child Listing 112.07 covers somatofom disorder, which is "manifested by physical symptoms for
which there are no demonstrable organic findings or known physiologic mechanisms[.]" 20 C.F.R.
Part 404, Subpart P, App. 1, § 112.07. To qualify under the listing, plaintiff must show a
"nonorganic disturbance" in one of a number of major body systems, including subpart "g",
"digestion or elimination." Id. at (A)(3). The parties do not dispute plaintiff meets the "A" criteria.
(Tr. 18.) In order to satisfy the "B" criteria, plaintiff must establish two requisites in Listing 112.02
(B)(2)(a-d). 20 C.F.R. Part 404, Subpart P, App. 1, § 112.07 (citing Listing 112.02). Dr. Brigman
opined plaintiffmet subsection (b) for "[m]ai·ked impairment in age-appropriate social functioning"
and subsection (d) for"[ m]arked difficulties maintaining concentration, persistence, or pace." Id.,
(Tr. 470-71 ). The ALJ refuted Dr. Brigman' s opinion, finding the objective medical evidence did
Page 12 - OPINION AND ORDER

not reflect "impaired social functioning or personal functioning." (Tr. 18.)
Plaintiff first argues the ALJ failed to specifically identify evidence that contradicted Dr.
Brigman's opinion. Pl. 's Br. 17-18; Pl.'s Reply 2 (quoting Regennitter v. Comm 'r ofSocial Sec.

Admin., 166 F.3d 1294, 1299 (9th Cir. 1999) (the ALJ must set forth his own interpretation of the
medical evidence and explain why the ALJ's, rather than the doctor's, are correct)). Plaintiff
contends the ALJ's failure to explain his finding is reversible enor, as the "court cannot affirm an
ALJ' s finding on a ground or evidence not used by the ALJ himself." Pl.' s Reply 2 (quoting Bray

v. Comm 'r ofSoc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009)). However, independent comt
review establishes the ALJ provided ample explanation ofhis interpretation ofthe medical evidence
as it relates to social and personal functioning in the portion of the decision regarding whether
plaintiff equals a Listing. See (tr. 19-27). Accordingly, plaintiffs contention that the ALJ simply
ignored the opinion or rejected it without explanation lacks merit. As the reasons for discrediting
Dr. Brigman's opinion are equally applicable to either the "meets a listing" or "equals a listing,"
the ALJ did not en.
Moreover, even if the court were to find the ALJ ened by failing to find plaintiff meets the
listing at issue because the ALJ simply disregarded a medical opinion, the e1rnr is nonetheless
harmless when the ALJ subsequently considers that medical evidence and finds plaintiff does not
equal a listing. See 20 C.F .R. § 404. l 526(b)(3) ("If you have a combination ofimpairments, no one
of which meets a listing ... we will compare your findings with those for closely analogous listed
impairment. If the findings ... are at least of equal medical significance to those of a listed
impairment, we will find that your combination of impairments is medically equivalent to that
listing."). Thus, plaintiffs assignment of error is unavailing.
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Plaintiff argues the evidence and the ALJ's interpretation of the evidence is inadequate to
discredit Dr. Brigman' s opinion. Pl.' s Reply 2. With regard to social and personal functioning, Dr.
Brigman opined plaintiff had "marked" limitations and "misses so much school she has difficulty
making and sustaining friendships." (Tr. 471.) The ALJ disagreed, finding plaintiffs limitation
in social functioning "mild." (Tr. 18.) In support, the ALJ noted plaintiffs testimony that she spent
summers involved in activities such as swimming, walking around town, going to the movies, and
doing things with her friends. (Tr. 20, 48.) The ALJ elaborated further on plaintiffs social
functioning in evaluating the "Interacting and Relating with Others" domain. (Tr. 24.) He noted
plaintiff had friends and exhibited behaviors that were viewed as normal. (Tr. 25, 374.) The ALJ
also noted plaintiffs teacher generally found either "no problem" or "slight problem" in interacting
and relating with others. (Tr. 25, 200.) The ALJ acknowledged plaintiffs testimony that when
hanging out with friends, she would sometimes feel the need to step away due to anxiety. (Tr. 24,
54.) The ALJ also indicated that despite the anxiety plaintiff described, he accorded "great weight"
to four agency medical examiners who found less than marked limitations in interacting and relating
with others. (Tr. 21, 81, 91.)
Plaintiff contends the ALJ misinterpreted the evidence regarding social functioning,
primarily citing her mother's lay testimony. Pl. 's Reply 2-4. Plaintiff contends the ALJ failed to
properly evaluate her "capacity to form appropriate, stable, and lasting relationships" and her
allegation of"isolation, withdrawal, and inappropriate or bizarre" behaviors in social settings. Pl. 's
Reply 3 (citing§ 112.07(B)(2)). Plaintiffs mother indicated plaintiff has no friends her own age,
has trouble making friends, and is rejected by her classmates because she attended so little school
due to her gastrointestinal impairment and anxiety. Pl.'s Reply 3-4; (tr. 67-68, 71). However, the
Page 14- OPINION AND ORDER

ALJ specifically explained both plaintiffs and her mother's allegations were contradicted by
plaintiffs testimony at the hearing, she had friends and participated in a number of activities. (Tr.
22.) As noted above, the ALJ explained that plaintiffs teacher did not generally identify more than
"slight problem[ s] ." (Tr. 25.) Despite plaintiffs alternative interpretation, the ALJ' s finding was,
therefore, reasonably based on substantial evidence in the record. The court may not substitute its
judgment for that of the ALJ's in such circumstances. See Tackett v. Apfel, 180 F.3d 1094,1098
(9th Cir. 1999).
Plaintiff also alleges error in the ALJ's statement that"[a]ny problems in this area [social
functioning] appear to be related to those occasions in which she is feeling ill, thereby preventing
her from interacting with others. (Tr. 22.) Plaintiff argues the ALJ did not acknowledge plaintiffs
absences are "the reason she meets the listings" and "an indication plaintiff is not functioning,
socially or otherwise, due to her anxiety symptoms." Pl. 's Reply 4. However, plaintiffs argument
is without merit. As described above, social functioning is evaluated according to a plaintiffs
"capacity to form appropriate, stable, and lasting relationships." § 112.07(B)(2). The ALJ found
plaintiffs social functioning problems at school were related to absenteeism rather than an
incapacity to form relationships. (Tr. 24.) The ALJ thereby inferred that any social functioning
problems are not primarily caused by the severe impairments identified in step two, but rather her
poor attendance, which was attributed to a number of causes. (Tr. 24.) Plaintiff proffers an
alternative interpretation of the evidence, but again, as the ALJ's interpretation is specific, rational,
and based on substantial evidence, the finding must be upheld. Tackett, 180 F.3d at 1098. For these
reasons, the ALJ did not commit reversible error in rejecting Dr. Brigman's opinion of plaintiffs
social functioning.
Page 15 - OPINION AND ORDER

The ALJ also discredited Dr. Brigman's opinion that plaintiff had markedly impaired ageappropriate personal functioning. (Tr. 18, 471.) Although personal functioning is covered under

§ 1l2.02(B)(2)(c), Dr. Brigman indicated it applied to subpatt (d), which appears to have caused
confusion in the ALJ' s decision. (Tr. 18.) It is unclear if Dr. Brigman intended to indicate plaintiff
had marked difficulty in personal functioning aside from plaintiffs allegedly marked limitation in
social functioning. See (tr. 471). Regardless, the evidence does not support Dr. Brigman's
conclusion. For example, plaintiffs mother indicated in her original functional report that plaintiff
is able to maintain personal hygiene, help with chores, cook meals for herself, get to school on time,
obey rules, and avoid accidents. (Tr. 175.) In the appeal of the Commissioner's original decision,
plaintiff did not indicate that she had any illness, injury, or condition that affected her ability to care
for her personal needs. (Tr. 208.) Aside from Dr. Brigman's conclusion, her medical opinion
testimony contains no mention of personal functional limitations. See (tr. 470-71.) Similm·ly, the
evaluation by plaintiffs teacher indicated no problems in the domain of"Caring for Yourself' or
"Moving About and Manipulating Objects." (Tr. 201-02.) Independent review by the court
confirms the ALJ's conclusion that the record lacks evidence of impaired personal function. As
such, the ALJ did not simply ignore evidence in aniving at his conclusion; rather, he made the
accurate observation the record did not contain such evidence. (Tr. 18.) Further, plaintiff did not
proffer any such evidence, aside from Dr. Brigman's unsupported opinion. An ALJ is not required
to accept a physician's opinion that is brief, conclusory, or inadequately supported by clinical
findings. Bayliss, 427 F.3d at 1216. To the extent Dr. Brigman intended to conclude plaintiffhad
marked impairment in personal functioning as contemplated by the Act her opinion was brief,
conclusory, and unsupported by clinical findings.

Page 16 - OPINION AND ORDER

Dr. Brigman indicated plaintiffhas marked impainnent in concentration, persistence, or pace
"when either her anxiety is high or her gastro symptoms are triggered."

(Tr. 471); see §

l 12.02(B)(2)(d). While the ALJ did not specifically address subpart (d) in the passage regarding
Child Listing 112.07, he nonetheless addressed concentration, persistence, or pace in evaluating
whether plaintiff met Listing 112.04 for dysthemic disorder and in evaluating Listings 12.04, 12.06,
and 12.07. (Tr. 18.) Similarly, the ALJ found plaintiff had no marked limitations in Attending and
Completing tasks. (Tr. 22-24.)
The Commissioner argues the ALJ adequately provided specific and legitimate reasons for
discrediting Dr. Brigman's opinion regarding concentration, persistence or pace. The ALJ noted
plaintiff was receiving A's and B's in the tenth grade, though her grade point average subsequently
decreased. (Tr. 22.) The ALJ also noted Dr. Brigman herself indicated plaintiff was not limited
in school performance or behavior/attention in Janumy 2011. (Tr. 23, 374.) The ALJ fmiher
explained that plaintiffs mother reported plaintiff completes homework and is able to complete
tasks.

(Tr. 24, 176, 178.) On the other hand, the ALJ acknowledged plaintiffs teacher's

observation that plaintiff has difficulty with "multistep [sic] instructions and completing
homework/class assignments." (Tr. 23.)
However, the ALJ is the proper arbiter of ambiguities in the record. Magallanes, 881 F.2d
at 750. The ALJ reviewed all of the relevant evidence and found plaintiffs difficulties in
completing her homework tasks due primarily to her absenteeism. (Tr. 24.) Dr. Brigman's medical
opinions were inconsistent, as she indicated plaintiff was not limited in behavior/attention in 2011,
but markedly limited in concentration, persistence, or pace in2013. Compare (tr. 374) to (tr. 471).
The medical record otherwise contains scant evidence of clinical findings suggestive oflimitations
Page 17 - OPINION AND ORDER

in concentration, persistence, and pace. Thus, considering the record as a whole, the court is
satisfied the ALJ did not arbitrarily disregard Dr. Brigman's 2013 assessment. Rather, the ALJ
appropriately accorded the opinion diminished weight, finding plaintiff has mild difficulty in
concentration, persistence, and pace. (Tr. 18.) The ALJ' s determination that plaintiff does not meet
a Child Listing 112.07 is therefore upheld.
B. Whether Plainti.ff Functionally Equals a Child Listing

Plaintiff argues the ALJ erroneously determined she did not functionally equal a Child
Listing. The ALJ must consider all activities in all settings (at home, school, and in the community)
in evaluating whether a child functionally equals a Child Listing. Social Security Ruling ("SSR")
09-lp, available at 2009 WL 396031, *1-2. The ALJ provided a thorough analysis of each of the
six domains in evaluating whether plaintiff functionally equaled listing 112.07. Plaintiff, however,
argues the ALJ "failed to consider Dr. Brigman's opinion at all" in assessing the domains. Pl.'s
Reply 7. Specifically, plaintiff contends the ALJ "failed to assign the limitations rep01ted by Dr.
Brigman to any relevant domain and then evaluate severity." Pl.'s Reply, 7-8.
Plaintiffs argument lacks merit.

Regarding the domain of "Acquiring and Using

Information," the ALJ noted Dr. Brigman' s report that plaintiff was receiving A's and B's. (Tr. 22.)
The ALJ also noted plaintiffs teacher repo1ted "very serious problems in learning new material,
expressing ideas in written form, and applying problem solving skills in class discussions." (Tr.
23.) However, the ALJ also noted the teacher's report that plaintiff"had only a slight problem in
comprehending oral instructions, understanding and participating in class, and in providing oral
explanations." Id. The ALJ found that plaintiff had "no problem" in understanding infonnation,
but that she had problems acquiring information primarily due to absences. Id. The ALJ therefore
Page 18 - OPINION AND ORDER

concluded plaintiff had no limitation in acquiring and using information.
Plaintiff generally argues the ALJ "failed to assign the limitations reported by Dr. Brigman
to any relevant domain." Pl.'s Reply 7. Plaintiff does not specify what limitation, if any, the ALJ
failed to consider in his "Acquiring and Using Information" domain inquiry. Furthermore, as in an
adult RFC, the ALJ is not required to assign eve1y limitation proffered by a medical source; only
limitations supported by substantial evidence must be incorporated into functional capacity
assessments. Osenbrockv. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001). The ALJ did not err in
assessing the "Acquiring and Using Information" domain.
The ALJ found that while plaintiff had some difficulty in the domain of "Attending and
Completing Tasks," she nonetheless had less than marked limitation. (Tr. 23.) As described above,
plaintiffs teacher reported difficulty with carrying out multi-step problems and completing
homework. Id. Again, the ALJ opined that plaintiffs difficulties were due to her absenteeism. (Tr.
23.) As discussed in the preceding section, the ALJ reasonably assessed evidence of plaintiffs
limitations in concentration, persistence, and pace. Supra. Plaintiff argues the ALJ "failed to
recognize Plaintiffs absences are a primary reason Plaintiff is severely limited in these domains,"
but it is clear the ALJ was aware that absences were a primary reason. See Pl.'s Br. 18. Plaintiff
also argues the ALJ "failed to consider the absences as evidence of impairment." Pl. 's Reply 8.
However, the ALJ indicated the absences were due to "a variety of problems, including headaches
and menstiual cramps, although primarily gastrointestinal complaints and anxiety." (Tr. 24.) The
ALJ acknowledged some limitation, but reasonably interpreted the varied evidence regarding
plaintiffs ability to concentrate and complete homework and other tasks from plaintiff, her mother,
and Dr. Brigman, and did not find marked limitation. Id. The ALJ's rational interpretation must
Page 19- OPINION AND ORDER

be upheld. Tackett, 180 F.3d at 1098.
The ALJ also found less than marked limitation in the "Interacting and Relating with
Others" domain. (Tr. 24.) The ALJ summarized the evidence, including that plaintiff was
sometimes nervous around her friends. Id. The ALJ also noted a history of a referral for anger
management and depression, but accorded the evidence minimal weight based on plaintiffs own
"emphatic" testimony that she did not have an anger problem. Id. Significantly, the ALJ further
noted repmis from plaintiffs teacher that she generally had no problems or slight problems in
personal interactions at school, and that plaintiffs mother testified that plaintiff got along with her
teachers at school. Id. Acknowledging some level of difficulty in social functioning, the ALJ found
mild impairment. (Tr. 18.) As above, the ALJ is not required to include in a functional assessment
limitation issues that are not supported by substantial evidence. Osenbrock, 240 F .3d 1164-65. The
ALJ' s finding is valid.
The ALJ found less than marked limitation in the domain of "Moving About and
Manipulating Objects." (Tr. 25.) To the degree plaintiff alleges the ALJ failed to incorporate the
opinion of Dr. Brigman relative to this domain, independent review of the doctor's opinion reveals
no evidence of limitation in this domain.
In the "Caring for Yourself' domain, the ALJ found less than marked limitation. Although

Dr. Brigman indicated plaintiff has marked limitation in personal functioning, the ALJ found
plaintiff was "generally able to take caTe of her personal needs, including hygiene." (Tr. 26.) For
the reasons discussed in the previous section supra, the ALJ did not err in declining to adopt Dr.
Brigman's opinion as it was unsuppotied by substantial evidence in the record. Osenbrock, 240
F.3d 1164-65. Plaintiffs teacher observed no problems in personal care, and plaintiffs mother
Page 20 - OPINION AND ORDER

reported only her belief that plaintiff was unable to use public transportation on her own, though
no rationale was provided. (Tr. 175, 202.) The ALJ did not err.
Lastly, the ALJ found plaintiff was not markedly limited in "Health and Physical WellBeing." (Tr. 27.) The ALJ noted plaintiff had "problems associated with her gastronintestinal
complaints," but the problems "did not reach the level of 'medical fragility or limitations due to
treatment, or any other example cited in the Regulations." Id Plaintiff does not specifically contest
the ALJ's finding regarding this domain. See Pl.'s Br. 17-18; Pl.'s Reply 2-8. Moreover, Dr.
Brigman did not provide an opinion on this domain in her 2013 letter. (Tr. 470-71.) The ALJ
recognized plaintiffs difficulties in this domain, but nonetheless determined they amounted to less
than marked limitations. (Tr. 27.) In the absence of any contrary argument from plaintiff, and as
this finding is supported by substantial evidence, the finding is upheld. Tackett, 180 F.3d at 1098.
Based on the foregoing, the comi finds the ALJ did not fail to consider Dr. Brigman's
opinion in evaluating the domains. Rather, the ALJ's analysis of the domains abides the proper
legal standards and is based on substantial evidence. The ALJ' s valid findings that plaintiff did not
have "marked" limitation in two domains, or "extreme" limitation in any domain, are upheld. Id
Accordingly, the ALJ's finding that plaintiff did not meet or equal a listing prior to age 18 is valid.

Id

C. Whether PlaintiffMeets or Equals an Adult Listing
After concluding the analysis regarding the child listings, the ALJ found, and plaintiff does
not contest, plaintiff had not developed any new impairments since turning age 18. (Tr. 27.) The
ALJ indicated that after turning 18, plaintiff continued to experience severe impairment or
combination of impairments. Id The ALJ then found that for the same reasons plaintiff did not

Page 21 - OPINION AND ORDER

meet the Child Listings for an impairment, plaintiff also did not meet the relevant Adult Listings.
Id. Plaintiff contends that in so doing, the ALJ "failed to discuss Dr. Brigman's opinion, or indeed

any other evidence of record." Pl.'s Br. 18. However, the ALJ provided extensive evidentiary
analysis regarding why plaintiff did not meet or equal the Child Listings, which is a discussion
equally applicable to the Adult Listings inquiry. Rather than repeat the analysis, the ALJ chose to
reference the prior analyses and discussion in making his finding. To the degree plaintiff did not
satisfy the relevant Child Listings, the Adult Listings too were not satisfied. Plaintiff does not
proffer any evidence that would render a different outcome. Plaintiffs argument is unavailing.
IV.

Lay Witness Testimony
Plaintiff alleges the ALJ failed to properly credit the lay testimony of her mother, Kimberly

Burkenbine, and of a teacher at plaintiffs high school. Lay witness testimony is competent
evidence which an ALJ must take into account unless the ALJ provides specific, germane reasons
to disregard the testimony. Dodrill v. Shala/a, 12 F.3d 915, 919 (9th Cir. 1993); see also Bruce v.
Astrue, 557F.3dI113, 1115 (9th Cir. 2009). The ALJ indicated he accorded "only some weight

to Ms. Burkenbine's view of her daughter's problems." (Tr. 21.) The ALJ found that while Ms.
Burkenbine testified that plaintiff tends to isolate herself from other people, plaintiff "presents a
very different picture of her social activities." (Tr. 21-22.) The ALJ explained that plaintiff
provided contrary testimony, as she indicated, "she had friends and did a variety of activities during
the summe1time." (Tr. 22.) lnconsistenttestimony between a plaintiff and lay witness is a gennane
reason to accord such testimony diminished weight. Lewis, 236 F.3d at 512.
Plaintiff argues that her mother's testimony did not contradict her own testimony because
her mother repmted plaintiff spent time with her sister's significantly younger friends. PL' s Br. 26.
Page 22 - OPINION AND ORDER

Plaintiff explains that she spends time with younger children, which is consequential because in the
domain of "Interacting and Relating to Others" one of the issues is whether plaintiff "initiates and
develops friendships with children of the same age." Id.; see SSR 09-0Sp, available at 2009 WL
396026, *6. Presumably, plaintiff asserts that although she spends time with friends in the
summertime, those friends are her sister's age, and therefore do not qualify with respect to the
domains. Plaintiffs argument fails, however, because regardless of the age of the friends plaintiff
referred to in her testimony, the fact that she spends time with friends at all, and participates in
various activities, contradicts her mother's testimony that most of plaintiffs time is spent in
reclusion in her room. (Tr. 74-75.) Additionally, it is not clear whether the "friends" plaintiff
refetTed to were her own age, or rather her sister's age. (Tr. 21-22; 48.) Again, while plaintiff
offers an alternative interpretation of the evidence, the ALJ 's interpretation is rational and supported
by substantial evidence, and germane to Ms. Burkenbine's testimony. Tackett, 180 F.3d at 1098.
The finding is upheld.
Plaintiff also argues the ALJ did not provide legally sufficient reasons for rejecting some
of the information provided in a questionnaire completed by plaintiffs english and social studies
teacher.' Pl. 's Br. 26; see (tr. 197-202). According to plaintiff, although the ALJ "considered some
of the limitations ... in the domains of Acquiring and Using Information and Attending and
Completing Tasks, he rejected all of them ... [and] failed to provide any reasons[.]" Pl.' s Br. 26-27.
As explained above, the ALJ acknowledged the limitations plaintiffs teacher reported in his
decision. (Tr. 23.) The ALJ then interpreted the evidence provided by the teacher, finding plaintiff
had only slight problems in comprehending oral instructions, understanding and participating in
1

The teacher is not identified by name in the record.

Page 23 - OPINION AND ORDER

class, and providing organized oral explanations. (Tr. 23.) While the teacher noted plaintiff had
"serious problems" in learning new material and completing assignments, the ALJ attributed the
problems primarily to plaintiffs poor attendance dueto "a variety of problems." (Tr. 23-24.) Thus,
to the extent the ALJ did not fully credit plaintiffs teacher, he provided germane reasons for
interpreting the proffered evidence as he did. Molina, 674 F.3d at 1111.
In sum, the ALJ did not commit reversible error in evaluating the testimony of the lay
witnesses.
V.

RFC Formulation
Plaintiff argues the ALJ formulated an erroneous RFC. The RFC is the most a claimant can

do despite his restrictions. See 20 C.F.R. § 416.945. In determining the RFC, the ALJ must
consider limitations imposed by all of claimant's impairments, even those that are not severe, and
evaluate "all of the relevant medical and other evidence," including a claimant's testimony. SSR
96-8p, available at 1996 WL 374184. Only limitations supported by substantial evidence must be
incorporated into the RFC. Osenbrock, 240 F.3d at 1164-65.
The ALJ indicated plaintiff retained the RFC to perform a full range of work at all levels
of exe1iion, but restricted to "frequent interaction with coworkers or supervisors, and the ability to
remember, understand, and carry out instructions and tasks generally associated with occupations
with an SVP of 1to4. (Tr. 28.) Plaintiff argues the RFC formulation is invalid because it did not
include plaintiffs "inability to handle stress, miss[] days at school, and inability to concentrate
when [her] anxiety is high." Pl.'s Br. 18-19. However, the ALJ noted he found plaintiffs
testimony not fully credible, as discussed above. An ALJ is not required to include less-thancredible evidence in an RFC. Osenbrock, 240 F.3d at 1164-65.
Page 24 - OPINION AND ORDER

Plaintifffmther argues the ALJ failed to incorporate Dr. Brigman's opinion that plaintiffs
physical symptoms were a product of her stress, which caused her to miss school, and therefore
would cause her to miss work. Pl.' s Br. 19. Defendant responds that the ALJ reasonably accounted
for plaintiffs anxiety symptoms by limiting her to "frequent" interactions with coworkers and
supervisors, and jobs requiring no more than a specific vocational preparation ("SVP") of 1to4.2
(Tr. 28.) However, plaintiff further mgues limiting her to jobs of "SVP I to 4" fails to address
plaintiffs limitations in concentration, persistence, or pace. In support, plaintiff cites a recent case
wherein an RFC was deemed invalid because it contained a restriction to jobs with an SVP rating
of 1-4, which failed to adequately clarify the plaintiffs limitations regarding concentration,
persistence, or pace. See Nava v. Colvin, Case No. 3:14-cv-1348-AA, 2015 WL 5854074 (D. Or.
Oct. 6, 2015).
However, Nava is distinguishable. There, the court did not find the ALJ's RFC per se
invalid because it proscribed work with SVP 1-4. Rather, the Nava court noted, "the record is
unclear whether the ALJ found limitations in concentration, persistence, or pace[,]" which rendered
the RFC invalid. Id. at *6. Specifically, the comt was "unable to decipher whether the ALJ
accepted or rejected the limitations in concentration, persistence, and pace" because the ALJ "relied
solely on SVP ratings in assessing [the] plaintiff's non-exertional limitations." Id. at *5. Here,
however, the ALJ indicated plaintiffs limitations regmding concentration, persistence, and pace
were mild. (Tr. 18.) An ALJ is not required to account for "mild" limitations in the RFC
formulation. 20 C.F.R. § 404.l 520a(d)(l ); 416.920a(d)(l ). Further, the ALJ found plaintiff does

2

An SVP of 1-2 indicates the preparation time required for unskilled work, while the
preparation time required for semi-skilled work corresponds to an SVP of 3-4. SSR 00-4p,
available at 2000 WL 1898704, *3.
Page 25 - OPINION AND ORDER

not have any limitation in "acquiring and using infotmation," and had problems in "attending and
completing tasks" due to frequent absences, not because of her ability level. (Tr. 22-24.)

\\ \\ \
Thus, the RFC formulation in the instant case does not have the same deficiencies as those
discussed in Nava.
This court's assessment of the Commissioner's decision is "a highly deferential standard
ofreview." Valentine v. Comm 'r Soc. Sec. Admin", 574 F.3d 685, 690 (9th Cir. 2009). The ALJ's
decision comp01is with the record as a whole, and is based on substantial evidence such that "a
reasonable mind might accept it as adequate to support a conclusion." Desrosiers v. Secretary of
HHS., 846 F.2d 573, 575-76 (9th Cir. 1988) (internal citations omitted). As discussed in detail

above, the ALJ' s RFC formulation is based on substantial evidence in the record. Although
plaintiff proposes an alternative interpretation of the evidence, the ALJ' s interpretation is
reasonable, and must therefore be affirmed. Lewis, 498 F.3d at 911.
Conclusion

For the reasons stated above, the Commissioner's decision is AFFIRMED and this case is
hereby DISMISSED.
IT IS SO ORDERED.

c·~L/

DATED this£__ c'Ji'February, 2016.

JOBN V. ACOSTA
Unite4States Magistrate Judge

Page 26 - OPINION AND ORDER