Hamilton v. Commissioner Social Security Administration
Filing
18
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter with prejudice. Signed on 05/12/2016 by Judge Anna J. Brown. See attached 24 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
AMY MARIE HAMILTON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
LISA R. J. PORTER
JP Law PC
5200 S.W. Meadows Road, Suite 150
Lake Oswego, OR 97035
(503) 245-6309
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
1 - OPINION AND ORDER
3:15-cv-00859-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
JEFFREY E. STAPLES
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900
Seattle, WA 98104
(206) 615-3706
Attorneys for Defendant
BROWN, Judge.
Plaintiff Amy Marie Hamilton seeks judicial review of a
final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff’s application
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act.
This Court has jurisdiction to review the
Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter with prejudice.
ADMINISTRATIVE HISTORY
Plaintiff filed an application for SSI on September 26,
2011, and alleged a disability onset date as of July 3, 2000.
Tr. 43, 184.1
Her application was denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on August 7, 2013.
1
Tr. 40.
At the hearing Plaintiff and
Citations to the official transcript of record filed by
the Commissioner on October 9, 2015, are referred to as “Tr."”
2 - OPINION AND ORDER
a vocational expert (VE) testified.
Plaintiff was represented by
an attorney.
On August 14, 2013, the ALJ issued an opinion in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Tr. 22-34.
On April 24, 2015, that decision became
the final decision of the Commissioner when the Appeals Council
denied Plaintiff’s request for review.
Tr. 1-3.
See Sims v.
Apfel, 530 U.S. 103, 106-07 (2000).
BACKGROUND
Plaintiff was born on April 15, 1973.
Tr. 46, 184.
Plaintiff was 40 years old at the time of the hearing.
has a high-school diploma.
Tr. 47, 189.
any past relevant work experience.
Plaintiff
Plaintiff does not have
Tr. 33.
Plaintiff alleges disability due to a pinched nerve in her
right hip, fibromyalgia, sciatica, post-traumatic stress
disorder, “right knee problems,” depression, anxiety, asthma,
“short term memory problems,” “comprehension problems,” insomnia,
migraine headaches, and irritable bowel syndrome.
Tr. 188.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 27-33.
3 - OPINION AND ORDER
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate her
inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months.”
§ 423(d)(1)(A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner’s decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).
42
See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
It is more than a mere scintilla of evidence,
but less than a preponderance.
at 690).
4 - OPINION AND ORDER
Id. (citing Valentine, 574 F.3d
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner’s decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. § 416.920(a)(4)(I).
See also Keyser v.
Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairments or combination of impairments.
§ 416.920(a)(4)(ii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
5 - OPINION AND ORDER
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 416.920(a)(4)(iii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
The
criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§ 416.920(e).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
“A
‘regular and continuing basis’ means 8 hours a day, for 5 days a
week, or an equivalent schedule.”
SSR 96-8p, at *1.
In other
words, the Social Security Act does not require complete
incapacity to be disabled.
Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
20 C.F.R. § 416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
6 - OPINION AND ORDER
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 416.920(a)(4)(v).
Keyser, 648 F.3d at 724-25.
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.
If the Commissioner meets this burden, the claimant
is not disabled.
20 C.F.R. § 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since her September 26, 2011,
application date.
Tr. 24.
At Step Two the ALJ found Plaintiff has the severe
impairments of degenerative disc disease of the lumbar spine,
migraines, obesity, borderline intellectual function, anxiety
disorder, and affective disorder.
Tr. 24-25.
At Step Three the ALJ concluded Plaintiff’s medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P, appendix
1.
Tr. 25-27.
7 - OPINION AND ORDER
In his assessment of Plaintiff’s RFC, the ALJ found
Plaintiff can perform light work except she cannot climb ladders,
ropes, or scaffolds; can frequently kneel and crouch, but cannot
crawl; can balance and climb ramps and stairs on an unlimited
basis; must avoid exposure to hazards, fumes, odors, dust, gases,
and unventilated areas; can only perform “simple, repetitive
tasks with no requirement to read or write reports; and can
maintain concentration for two-hour intervals.
Tr. 27-33.
At Step Four the ALJ concluded Plaintiff does not have any
past relevant work.
Tr. 33.
At Step Five, however, the ALJ found Plaintiff is capable of
performing other jobs existing in the national economy as a
bicycle assembler, garment folder, or “cleaner/housekeeper.”.
Tr. 33-34.
In the alternative, assuming Plaintiff was only
capable of performing sedentary work, the ALJ concluded Plaintiff
is capable of performing other jobs existing in the national
economy such as a printed circuit-board screener or printed
circuit-layout taper.
Tr. 34.
Accordingly, the ALJ found
Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when (1) she failed to
develop the record with regard to Plaintiff’s fibromyalgia and,
accordingly, failed to conclude fibromyalgia is a severe
8 - OPINION AND ORDER
impairment at Step Two; (2) she did not conclude Plaintiff is
disabled at Step Three of the sequential analysis based on
Plaintiff’s intellectual disability; (3) she discredited
Plaintiff’s testimony without providing legally sufficient
reasons for doing so; (4) she discredited the lay testimony of
Plaintiff’s partner, Kayla Jordan, and friend, Barbara Dodge,
without providing legally sufficient reasons for doing so; and
(5) she concluded Plaintiff is not disabled based on an
assessment of Plaintiff’s RFC that did not include the
limitations contained in the testimony of Plaintiff, Jordan,
Dodge, and Jordan Isaac Roth, M.D.
I.
Step Two
As noted, Plaintiff contends the ALJ erroneously concluded
at Step Two that Plaintiff’s fibromyalgia is not a severe
impairment because the ALJ failed to develop the record as to
that issue.
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments that are expected to
last for a continuous period of at least 12 months.
Stout v.
Comm’r Soc. Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
See
also 20 C.F.R. § 416.920(a)(4)(ii); Keyser, 648 F.3d at 724.
A
severe impairment “significantly limits” a claimant’s “physical
or mental ability to do basic work activities.”
9 - OPINION AND ORDER
20 C.F.R.
§ 416.921(a), (b).
Such abilities and aptitudes include walking,
standing, sitting, lifting, pushing, pulling, reaching, carrying,
handling, seeing, hearing, and speaking; understanding, carrying
out, and remembering simple instructions; using judgment;
responding appropriately to supervisors, co-workers, and usual
work situations; and dealing with changes in a routine work
setting.
Id.
The Step Two threshold is low:
[A]n impairment can be considered as not severe only if
it is a slight abnormality which has such a minimal
effect on the individual that it would not be expected
to interfere with the individual’s ability to work
. . . . [T]he severity regulation is to do no more
than allow the Secretary to deny benefits summarily to
those applicants with impairments of a minimal nature
which could never prevent a person from working.
SSR 85-28, at *2 (Nov. 30, 1984)(internal quotations omitted).
When the Commissioner proceeds beyond Step Two, the
Commissioner’s failure to include any medical condition at Step
Two is harmless if the ALJ considered that condition when
formulating the claimant’s RFC and when reaching the disability
determination at Step Four or Five.
See Lewis v. Astrue, 498
F.3d 909, 911 (9th Cir. 2007).
There are two alternative ways an ALJ may determine
fibromyalgia is a severe impairment at Step Two.
With respect to
the first criterion the claimant must establish:
(1) “A history
of widespread pain . . . that has persisted . . . for at least 3
months”; (2) “[a]t least 11 positive tender points on physical
10 - OPINION AND ORDER
examination”; and (3) “[e]vidence that other disorders that could
cause the symptoms or signs were excluded.”
3104869, at *2-*3 (Jul. 25, 2012).
SSR 12-2P, 2012 WL
Alternatively, a claimant
meets her burden of establishing fibromyalgia is a severe
impairment at Step Two if the record reflects the claimant has:
(1) “A history of widespread pain”; (2) “[r]epeated
manifestations of six or more FM symptoms, signs, or co-occurring
conditions, especially manifestations of fatigue, cognitive or
memory problems (“fibro fog”), waking unrefreshed, depression,
anxiety disorder, or irritable bowel syndrome”; and (3)
“[e]vidence that other disorders that could cause these repeated
manifestations of symptoms, signs, or co-occurring conditions
were excluded.”
Id., at *3.
Plaintiff does not contend the ALJ erred when she found
Plaintiff had not established either of the criteria under SSR
12-2P.
Instead Plaintiff contends the ALJ erred because she
concluded Plaintiff’s fibromyalgia did not meet the requirements
of SSR 12-2P without further developing the record.
The ALJ bears the burden of developing the record.
Massanari, 270 F.3d 838, 841 (9th Cir. 2001).
Reed v.
See also Camky v.
Colvin, No. 6:12-cv-01973 BR, 2013 WL 6243503, at *5 (D. Or.
Dec. 2, 2013).
When important medical evidence is incomplete,
the ALJ has a duty to re-contact the provider for clarification.
20 C.F.R. § 416.927(c)(2).
11 - OPINION AND ORDER
When making disability
determinations,
[i]f the evidence is consistent but we do not have
sufficient evidence to decide whether you are disabled,
or if after weighing the evidence we decide we cannot
reach a conclusion about whether you are disabled, we
will try to obtain additional evidence. . . . We will
request additional existing records, recontact your
treating sources or any other examining sources, ask
you to undergo a consultative examination at our
expense, or ask you or others for more information.
20 C.F.R. § 416.927(c)(3).
The decision whether to request a
consultative examination is within the discretion of the ALJ.
See 20 C.F.R. § 919a (“A consultative examination may be
purchased when the evidence as a whole, both medical and
nonmedical, is not sufficient to support a decision on your
claim.”).
“An ALJ ha[s] no duty to develop the record . . .
where the evidence was not ambiguous and the record was not
inadequate to allow for proper evaluation of the evidence.”
Coleman v. Colvin, No. 12-35207, 2013 WL 1694757, at *1 (9th Cir.
Apr. 19, 2013).
See also Ludwig v. Astrue, 681 F.3d 1047, 1055
n.30 (9th Cir. 2012)(“‘An ALJ’s duty to develop the record
further is triggered only when there is ambiguous evidence or
when the record is inadequate to allow for proper evaluation of
the evidence.’”)(quoting Mayes v. Massanari, 276 F.3d 453, 459-60
(9th Cir. 2001)).
Here the ALJ’s duty to develop the record was not triggered
because the medical evidence was not ambiguous.
Although there
are multiple references to an apparent past diagnosis in the
12 - OPINION AND ORDER
medical record of Plaintiff as having fibromyalgia, the record
does not contain evidence sufficient to establish either of the
criteria under SSR 12-2P.
The evidence, therefore, was not
ambiguous nor “inadequate to allow for the proper evaluation of
the evidence,” but instead fell short in establishing the
criteria necessary to conclude that Plaintiff’s fibromyalgia
qualifies as a severe impairment.
n.30.
See Ludwig, 681 F.3d at 1055
The ALJ, therefore, did not err by failing to develop the
record further as to Plaintiff’s fibromyalgia.
In the alternative, even if the ALJ erred by excluding
fibromyalgia at Step Two, that error would be harmless because
the ALJ considered the totality of Plaintiff’s physical
limitations when she evaluated Plaintiff’s RFC.
See Lewis, 498
F.3d at 911 (9th Cir. 2007).
Accordingly, on this record the Court concludes the ALJ did
not err when she did not include fibromyalgia as a severe
impairment at Step Two.
II.
Step Three
At Step Three the Commissioner must determine whether a
claimant’s impairments meet or equal one of the listed
impairments; are so severe that they preclude substantial gainful
activity; and, therefore, render the claimant disabled.
C.F.R. § 416.920(a)(4)(iii).
See also Keyser v. Comm’r of Soc.
Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011).
13 - OPINION AND ORDER
20
The criteria for
the listed impairments, known as Listings, are enumerated in 20
C.F.R. part 404, subpart P, appendix 1 (Listed Impairments).
Social Security Ruling (SSR) 96-6p provides in pertinent part:
[L]ongstanding policy requires that the judgment of a
physician (or psychologist) designated by the
Commissioner on the issue of equivalence on the
evidence before the administrative law judge or the
Appeals Council must be received into the record as
expert opinion evidence and given appropriate weight.
In addition, the Ninth Circuit has held generalized
assertions of functional problems are insufficient to establish
that a claimant meets or equals a Listing at Step Three.
See,
e.g., Reed-Goss v. Astrue, 291 F. App’x 100, 101 (9th Cir.
2008)(“‘To meet a listed impairment, a claimant must establish
that he or she meets each characteristic of a listed impairment
relevant to his or her claim.’”)(quoting Tackett v. Apfel, 180
F.3d 1094, 1099 (9th Cir. 1999)).
When represented by counsel at the administrative hearing,
“appellants must raise issues at their administrative hearings in
order to preserve them on appeal before this Court.”
Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999).
Meanel v.
See also Phillips v.
Colvin, 593 F. App’x 683, 684 (9th Cir. 2015).
The court will
excuse such a failure to preserve an issue at the administrative
level, however, if doing so is “necessary to avoid a manifest
injustice.”
Meanel, 172 F.3d at 1115.
Plaintiff waived any assertion of error at Step Three,
however, when Plaintiff’s counsel stated at the hearing:
14 - OPINION AND ORDER
So in short we’re looking at a step five determination,
Your Honor. I don’t believe that [Plaintiff] meets and
equals any particular listing in her – its severity,
but her moderate limitations and in some cases with her
borderline IQ should suggest, as well of course of her
functioning, her GAF scores have never really reached
60, suggests that we have somebody with some — severe
deficits in being able to function even in daily
activities.
Tr. 45.
Plaintiff’s express disavowal of the possibility that
Plaintiff’s impairments meet or equal any listing at Step Three
(including any listing related to intellectual disability)
represents a waiver of this issue.
Moreover, in light of
Plaintiff’s express disavowal of a finding of disability at Step
Three and the limited evidence in the record regarding
Plaintiff’s intellectual disability, the Court concludes excusal
of the failure to preserve this issue is not “necessary to avoid
a manifest injustice.”
Meanel, 172 F.3d at 1115.
Accordingly, on this record the Court concludes the ALJ did
not err when she found Plaintiff’s impairments did not meet or
equal any listing at Step Three.
III. Plaintiff’s Credibility
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
15 - OPINION AND ORDER
Cotton, 799 F.2d 1403, 1407 (9th
Cir. 1986).
See also Spelatz v. Astrue, 321 F. App’x 689, 692
(9th Cir. 2009).
The claimant, however, need not produce
objective medical evidence of the actual symptoms or their
severity.
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
See also Delgado v. Commissioner of Social Sec. Admin., 500 F.
App’x 570, 570 (9th Cir. 2012).
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant’s pain testimony only if she provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995)).
General assertions that the claimant’s
testimony is not credible are insufficient.
Id.
The ALJ must
identify “what testimony is not credible and what evidence
undermines the claimant's complaints.”
Id. (quoting Lester, 81
F.3d at 834).
At the August 7, 2013, hearing Plaintiff testified she has
been unable to work on account of “pain issues,” including
fibromyalgia and migraine headaches.
Tr. 49-50.
Plaintiff
testified she experiences “pain or pressure from head to toe”
although a “large majority” of her pain was in her back at the
time of the hearing.
Tr. 50.
Plaintiff stated she is able to
walk around her neighborhood “one to two times a week depending
on the severity of [her] pain,” and is able to walk enough to go
16 - OPINION AND ORDER
to the grocery store.
Tr. 51.
Plaintiff testified she helps
with household activities like washing dishes, dusting, and
sweeping, but her partner completes most of the chores.
57.
Tr. 56-
In addition, Plaintiff reported she frequently has
difficulty getting sleep as a result of her sleep apnea, and the
lack of sleep makes it “harder for [her] to function and be able
to concentrate.”
Tr. 66.
Plaintiff testified she “kept a food activity journal” in
the past to help her doctors treat her chronic-pain and migraine
headaches.
Tr. 58.
Plaintiff stated she has difficulty
completing paperwork because it is “a point of anxiety and
frustration,” and her partner completed her disability forms for
her.
Tr. 60-63.
As a result of her anxiety and PTSD, Plaintiff
testified she does not leave her house “unless [she] absolutely
[has] to.”
Tr. 66.
Plaintiff stated she watches movies with her
partner and completes puzzles, but she does not play card games
“due to some abuse issues” that she experienced in childhood.
Tr. 53-54, 59.
In her Adult Function Report dated October 26, 2011,
Plaintiff stated she requires frequent rest while performing
daily chores, and she is unable to bend, walk, lift items, and
sweep and mop floors.
Tr. 212.
Plaintiff stated she is able to
help with cleaning and laundry, but she requires rest during
those activities and, as a result, chores take longer.
17 - OPINION AND ORDER
Tr. 215.
Plaintiff reported her social activities include watching
television and movies, playing cards and board games, listening
to music, and completing arts and crafts.
Tr. 216.
Plaintiff
indicated her conditions affect her ability to lift, squat, bend,
stand, reach, walk, sit, kneel, talk, climb stairs, remember,
complete tasks, concentrate, understand, following instructions,
use her hands, and get along with others.
Tr. 217.
Plaintiff
reported she can only walk one or two blocks before requiring 1520 minutes of rest.
Tr. 217.
The ALJ discredited Plaintiff’s testimony because it was
inconsistent with findings in the medical record, Plaintiff
demonstrated poor effort in medical examinations and failed to
seek mental-health services that were available to her, Plaintiff
made inconsistent statements about her daily activities and past
medical treatment, and Plaintiff’s testimony that her partner
filled out Plaintiff’s disability paperwork was contradicted by
the presence of two different handwriting styles on the forms.
Tr. 28-31.
The ALJ correctly noted Plaintiff made inconsistent
statements regarding her daily activities and past medical
treatment.
For example, as the ALJ noted, Plaintiff testified
she had a psychiatric hospitalization in 2011, but the record
does not contain any record of psychiatric hospitalization.
365, 428.
Tr.
Moreover, the ALJ reasonably found Plaintiff’s hearing
18 - OPINION AND ORDER
testimony that she does not play card games was inconsistent with
her report in his Adult Function Report in which Plaintiff listed
playing card games as among her social activities.
Tr. 59, 216.
As the ALJ noted, throughout much of the period relevant to
Plaintiff’s disability application, medical examination findings
did not indicate Plaintiff suffered from the full extent of
limitations that Plaintiff alleged as a result of her back pain.
See, e.g., Tr. 257 (Plaintiff can walk several blocks albeit with
exacerbated back pain and can perform household chores and care
for her partner), Tr. 504 (back pain “is at baseline”), Tr. 517
(Plaintiff doing a “fair amount of walking”).
Although
Plaintiff’s back pain appears to have worsened acutely in
February 2013 “after carrying large bags of groceries and riding
the bus,” the ALJ reasonably concluded Plaintiff’s allegations of
significant limitations due to back pain dating back to 2011 are
not fully supported by the medical record.
Moreover, the ALJ correctly noted instances in which
Plaintiff demonstrated poor effort on examination.
On
February 18, 2013, Dr. Roth indicated Plaintiff demonstrated
“[p]oor effort on [lower extremity] strength testing,” and on
February 3, 2012, Plaintiff was “[u]nwilling to participate in
other range of motion testing.”
Tr. 458, 518.
Moreover, the ALJ
correctly stated Plaintiff failed to follow up on mental-health
treatment services that were available to her; for example, on
19 - OPINION AND ORDER
two occasions Plaintiff was discharged from treatment at
LifeWorks NW for failure to follow up shortly after initiating
treatment.
Tr. 246-47, 378-79.
After reviewing the record, the Court concludes the ALJ
provided clear and convincing reasons for discrediting
Plaintiff’s testimony.
Accordingly, on this record the Court
concludes the ALJ did not err when she discounted Plaintiff’s
testimony because the ALJ cited legally sufficient reasons for
doing so.
IV.
Lay Testimony
When determining whether a claimant is disabled, the ALJ
must consider lay-witness testimony concerning a claimant’s
limitations and ability to work.
1104, 1114 (9th Cir. 2012).
Molina v. Astrue, 674 F.3d
If the ALJ wishes to discount the
testimony of lay-witnesses, he “must give reasons that are
germane to each witness.” Id. (quoting Nguyen v. Chater, 100 F.3d
1462, 1467 (9th Cir. 1996)).
See also Lester v. Chater, 81 F.3d
821, 834 (9th Cir. 1995)(improperly rejected lay-witness
testimony is credited as a matter of law).
Although the ALJ’s reasons for rejecting lay-witness
testimony must be “specific,” Stout v. Comm’r, Social Sec.,
Admin., 454 F.3d 1050, 1054 (9th Cir. 2006), the ALJ need not
discuss every witness’s testimony on an individualized basis.
Molina, 674 F.3d at 1114.
20 - OPINION AND ORDER
“[I]f the ALJ gives germane reasons
for rejecting testimony by one witness, the ALJ need only point
to those reasons when rejecting similar testimony by a different
witness.”
Id.
See also Valentine v. Comm’r Soc. Sec. Admin.,
674 F.3d 685, 690 (9th Cir. 2009).
A.
Testimony of Barbara Dodge
In a Third Party Function Report dated October 25, 2011,
Plaintiff’s friend, Barbara Dodge, reported Plaintiff “has
chronic pain and it gets to the point where she can barely move.”
Tr. 204.
Dodge stated Plaintiff’s migraines prevent her from
doing anything more than sleeping and staying in dark, quiet
areas.
Tr. 204.
Dodge stated Plaintiff performs a “small
amount” of daily chores at a time, but needs help with tasks that
require bending and/or carrying heavy items.
Tr. 206.
Dodge
reported Plaintiff’s hobbies include watching television, doing
arts and crafts, and playing with Dodge’s son.
Tr. 208.
Dodge
indicated Plaintiff’s conditions affect her abilities to lift,
squat, bend, stand, reach, walk, sit, kneel, climb stairs,
remember, concentrate, complete tasks, and get along with others.
Tr. 209.
Dodge reported Plaintiff can only walk “a few blocks”
before requiring “a few minutes” of rest.
Tr. 209.
The ALJ discredited Dodge’s testimony on the basis that
because Dodge’s complaints “reflect essentially the same
allegations made by the claimant,” Dodge’s allegations are not
credible for many of the same reasons that the ALJ provided when
21 - OPINION AND ORDER
she discredited Plaintiff’s testimony.
Tr. 32.
The Court finds
the ALJ reasonably concluded many of the same reasons that the
ALJ provided to discredit Plaintiff’s testimony also undercut
Dodge’s allegations.
Accordingly, on this record the Court concludes the ALJ did
not err when she discredited Dodge’s testimony because the ALJ
provided legally sufficient reasons for doing so.
B.
Testimony of Kayla Jordan
Plaintiff’s partner, Kayla Jordan, submitted a letter dated
July 9, 2013, in which Jordan stated Plaintiff suffers memory
loss, PTSD, and anxiety.
Tr. 240.
As a result, Jordan stated
Plaintiff experiences mood instability, does not adapt to change
well, rarely leaves home, avoids large crowds, and could not work
in any public setting.
Tr. 240-41.
In addition, Jordan reported
Plaintiff requires help in the bathroom and with dressing, and it
takes her an unusually long time to accomplish chores because of
her chronic pain and migraine headaches.
Tr. 240.
The ALJ discredited Jordan’s testimony for the same reasons
that the ALJ provided when she rejected Plaintiff’s testimony.
In addition, the ALJ reasoned Jordan may have secondary-gain
motivations because Jordan was expecting Plaintiff to use her
disability benefits to repay certain debts held by Jordan.
Although the Court does not conclude the record is sufficient to
support the ALJ’s finding of a potential secondary-gain
22 - OPINION AND ORDER
motivation, the Court finds the ALJ correctly concluded many of
the same reasons that the ALJ provided to discredit Plaintiff’s
testimony also undercut Jordan’s allegations.
Accordingly, on this record the Court concludes the ALJ did
not err when she discredited Jordan’s testimony because the ALJ
provided legally sufficient reasons for doing so.
V.
Step Five Error
Plaintiff asserts the ALJ erred at Step Five because the
ALJ’s assessment of Plaintiff’s RFC did not account for the
allegations contained in the testimony of Plaintiff, Dodge, and
Jordan or the opinion submitted by Dr. Roth.2
Because the Court
concluded the ALJ provided legally sufficient reasons for
discrediting the testimony that Plaintiff relies on, the ALJ did
not err in formulating her assessment of Plaintiff’s RFC or in
concluding Plaintiff is capable of performing other work
available in the national economy.
On this record, therefore, the Court concludes the ALJ did
not err at Step Five.
2
Plaintiff does not independently assign error to the ALJ
for giving little weight to Dr. Roth’s opinion. See Tr. 32, 43439. Nonetheless, the reasons that the ALJ provided for
discrediting Dr. Roth’s testimony constitute specific and
legitimate reasons for doing so, and, accordingly, the ALJ did
not err when considering Dr. Roth’s opinion.
23 - OPINION AND ORDER
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 12th day of May, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
24 - OPINION AND ORDER
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