Kayser v. Commissioner Social Security Administration
OPINION AND ORDER. The Commissioner's decision that Kayser is not disabled is supported by substantial evidence and based on proper legal standards and is therefore AFFIRMED. IT IS SO ORDERED. Signed on 5/18/2017 by Magistrate Judge Youlee Yim You. (pvh)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:16-cv-00153-YY
OPINION AND ORDER
COMMISSIONER OF SOCIAL
YOU, Magistrate Judge:
Plaintiff, Brenda Kayser (“Kayser”), seeks judicial review of the 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. This court has jurisdiction
under 42 U.S.C. § 405(g) and § 1383(c). All parties have consented to allow a Magistrate Judge
to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C.
§ 636(c). ECF #4. Because the Commissioner’s decision is supported by substantial evidence
and based on proper legal standards, it is AFFIRMED.
Page 1 – OPINION AND ORDER
Kayser filed her application for SSI on March 27, 2012 alleging disability beginning
September 1, 2010. Tr. 155–56. 1 After the Commissioner denied her application initially and
upon reconsideration Kayser requested a hearing before an Administrative Law Judge (“ALJ”),
which was held on June 26, 2014. Tr. 36–62, 64, 108–10. On July 10, 2014, the ALJ issued a
decision finding Kayser not disabled. Tr. 15–31. The Appeals Council denied Kayser’s
subsequent request for review of that decision on December 7, 2015. Tr. 1–6. Therefore, the
ALJ’s decision is the Commissioner’s final decision subject to review by this court. 20 C.F.R.
§§ 404.981, 416.1481, 422.210.
Born in 1964, Kayser was 46 years old on her alleged onset date of disability and 50
years old on the date of the administrative hearing. Tr. 24, 65, 155–56. She has two children
and worked as they grew up. Tr. 42. She speaks English and earned a GED. Tr. 24. She was
involved in at least one motor vehicle accident in her twenties. Tr. 26, 439. She began smoking
cigarettes at eight years old, and currently smokes half a pack a day despite experiencing asthma
and chronic obstructive pulmonary disease (“COPD”) symptoms, and despite being repeatedly
and strongly urged to quit by health care providers. Tr. 53, 54, 256, 288, 293, 303, 320, 446,
447, 512, 548. She also has a long history of smoking marijuana. Tr. 267, 281, 283, 295, 346,
512, 534. She has past relevant work experience as a cashier, order filler, and temporary
warehouse worker; however, she has not worked since 2001. Tr. 20, 76. Kayser alleges she is
unable to work due to combined impairments of depression, anxiety, pain in her neck and back,
Citations are to the page(s) indicated in the official transcript of the record filed on July 26,
2016 (ECF #15).
Page 2 – OPINION AND ORDER
degenerative disc disease, attention deficit disorder, asthma, emphysema, arthritis in her left hip,
and fibromyalgia. Tr. 66, 184; Pl.’s Opening Br., ECF #16, at 2.
In April 2010, Kayser’s primary care physician, Mindi Robinson, M.D., conducted an
imaging study of Kayser’s lumbar spine after she complained of pain in her left hip and back.
Tr. 301. The results were stable from the prior year’s exam and were within normal limits with
no acute findings. Tr. 302. Kayser also complained of pain in her tailbone. Tr. 303. Although
she had fallen when moving out of her apartment, she experienced no increase in pain as a result
of this incident. Tr. 277, 299, 305.
Later that same month, Kayser experienced an exacerbation of asthma and COPD
symptoms after she was exposed to fumes that likely contained chlorine gas, which could have
been produced from her landlord’s attempt to clean up cat urine with bleach. Tr. 290–92. She
was given DuoNeb by emergency medical services in route to the emergency department, and
was wheezing and short of breath upon admission. Tr. 290, 291. She was prescribed albuterol
MDI and a five-day course of prednisone, strongly urged to quit smoking, and discharged the
same day. Tr. 291. Ten days later, she presented to the emergency department again
complaining of wheezing and shortness of breath. Tr. 287, 288. She denied alcohol or drug use
but continued smoking cigarettes. Tr. 288.
Dr. Robinson saw Kayser several times in May 2010. Kayser complained of cough,
dyspnea, wheezing, back pain, headaches, and additional pain. Tr. 297. She also told Dr.
Robinson that riding her bike made her leg feel sore. Tr. 281. Dr. Robinson observed that
Kayser appeared anxious but was not in acute distress. Tr. 297.
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Kayser visited Dr. Robinson again in June 2010. Kayser admitted using marijuana to
help deal with her anxiety. Tr. 279. She complained of severe hip pain, but Dr. Robinson
refused to refill a morphine prescription until Kayser tested negative for recreational drugs. Tr.
279. Kayser denied experiencing fatigue or confusion, feeling hopeless or helpless, but appeared
anxious. Tr. 277, 279. An X-ray showed mild degenerative joint disease. Tr. 279. Dr.
Robinson remarked Kayser “has chronic pain issues with probable fibromyalgia.” Tr. 277. The
following month, Dr. Robinson reported that Kayser had improved control over her anxiety with
Buspar. Tr. 258.
Kayser presented to the emergency department in November 2010. Tr. 351. A chest Xray showed obstructive pulmonary parenchymal physiology and mild centrilobular emphysema;
however, Kayser improved dramatically with the administration of albuterol nebulizer therapy.
Kayser was hospitalized in March, April, and May 2011 for exacerbation of her COPD
symptoms. Tr. 319, 331, 333, 350–59. Leading up to each hospitalization, she had failed to fill
her prescriptions or schedule follow-up appointments and continued smoking cigarettes. Tr. 319.
She also tested positive for cannabinoids, despite telling Dr. Robinson in 2010 that she would
refrain from further marijuana use. Tr. 261, 323. Upon discharge, she was advised to follow up
with several free care clinics and multiple local area indigent clinics. Tr. 319. In September
2011, she again presented to the emergency department after experiencing shortness of breath,
but left the same day against medical advice. Tr. 308. After this, there is no evidence that
Kayser sought treatment until early 2013.
However, in September 2012, John Ellison, M.D., examined Kayser at the request of the
Commissioner. Tr. 441. Dr. Ellison diagnosed “chronic depression and anxiety, partially
Page 4 – OPINION AND ORDER
controlled,” generalized pain with very little tenderness to suggest fibromyalgia, “chronic
lumbosacral and left hip pain reportedly due to degenerative changes but she is very limber,”
chronic smoker’s bronchitis, reactive airway disease, gastroesophageal reflux disease, peripheral
neuropathy in her feet, remote history of hepatitis B with jaundice, and a remote history of drug
and alcohol abuse. Tr. 441.
State medical consultants also reviewed Kayser’s medical history in October 2012 and
February 2013. Tr. 65–78, 80–97. The ALJ accurately summarized their findings:
The consultants concluded that the claimant had the capacity to lift and/or carry
20 pounds occasionally and less than 10 pounds frequently; that she could stand
or walk with normal breaks for at least six hours in an eight-hour workday; and
that she could sit with normal breaks for a total of about six hours in an eight-hour
workday. The consultants also found that the claimant's ability to do work related
activities that involved pushing or pulling, including the operation of hand or foot
controls, was unlimited, other than for the lift and/or carry limitation mentioned
above. The consultants further found that the claimant could frequently climb
ladders, ropes, and scaffolds, frequently climb ramps and stairs, frequently kneel,
frequently crouch, and frequently crawl. They added that the claimant's ability to
balance and stoop was unlimited. The consultants also established that the
claimant needed to avoid concentrated exposure to fames, odors, dusts, gases, and
Tr. 27 (citing tr. 65–78, 80–97).
In March 2013, Kayser underwent a week-long vocational evaluation to determine
whether she could engage in competitive employment. Tr. 241. The vocational evaluator found
that Kayser had below average math skills, average reading comprehension skills, and below
average grammar skills. Tr. 241–42. Kayser performed above average on motor-coordination
tests, although she did not finish several tests due to complaints of pain. Tr. 242–45. The
evaluator determined that Kayser can read and understand simple information, she can listen and
understand oral instructions, she can communicate information in writing, and that she can
effectively communicate oral information to others. Tr. 249. The evaluator also found that
Kayser followed and completed tasks as assigned, she did not have difficulty learning new tasks,
Page 5 – OPINION AND ORDER
she was able to organize, problem-solve, and complete the logical reasoning tests quickly and
accurately, she remembered multi-step directions and correct task sequence without any
significant memory deficit, and that she was timely. Tr. 250. However, the evaluator ultimately
concluded that Kayser was not competitively employable because her “multiple medical
conditions negatively impacted her stamina in performing tasks for any length of time due to
pain.” Tr. 250.
Kayser visited the emergency department again in July 2013. The doctor’s report listed
Kayser’s arthritis of the hip and fibromyalgia as resolved. Tr. 491. Additional emergencydepartment records from December 2013 list Kayser’s arthritis of the hip, asthma, emphysema,
and fibromyalgia as resolved. Tr. 486. The doctor did not prescribe pain medication despite
Kayser’s complaints of pain. Tr. 492. February 2014 emergency-department records also
continued to list Kayser’s arthritis of the hip and fibromyalgia as resolved. Tr. 459.
In March 2014, Kayser saw Dr. Denise Palke at the Rosewood Family Health Center. Tr.
541–59. Kayser reported “diffuse pain complaints, including non-specific muscle pains, neck
and upper back pain, tailbone pain, low back pain.” Tr. 548. Dr. Palke diagnosed fibromyalgia
and recommended that Kayser exercise and receive counseling, but Kayser expressed only
moderate interest in these activities. Tr. 548. Dr. Palke was surprised to learn Kayser continued
smoking cigarettes while taking Chantix, and urged her to quit smoking to help relieve her
asthma symptoms and chronic pain. Tr. 548.
In May 2014, Kayser saw Dr. Oleg Maskimov at the Columbia Pain and Spine Institute.
Tr. 560–63. While Kayser was referred to the clinic due to complaints of back and neck pain,
Dr. Maskimov recommended only physical therapy, the use of nonsteroidal anti-inflammatory
medications, and “not to use any type of opioid medications.” Tr. 563. He recommended
Page 6 – OPINION AND ORDER
Kayser undergo further diagnostics, including an MRI, but found the range of motion of her
spine, pelvis, and ribs had normal flexion, normal lateral bending, and no evidence of laxity, but
painful hyperextension, and that the range of motion of her head and neck had normal left and
right sided rotation, lateral bending, flexion, and extension, but palpatory tenderness of cervical
spine C5-6 segments. Tr. 562. All dural root tension signs, Braggardis’ Tests, discogenic
provocation maneuvers, and sacroiliac joint provocation maneuvers were negative. Tr. 562. Dr.
Maskimov further reported that Kayser had “no depression, anxiety, or agitation.” Tr. 563.
During a follow up in June 2014, Dr. Palke reported that gabapentin seemed to resolve
Kayser’s fibromyalgia symptoms, but noted that Kayser sometimes forgets to take it. Tr. 553–
STANDARD OF REVIEW
The reviewing 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. 42 U.S.C.
§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the
evidence that supports and detracts from the ALJ’s conclusion. Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The
reviewing court may not substitute its judgment for that of the Commissioner. Parra v. Astrue,
481 F.3d 742, 746 (9th Cir. 2007)); Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
Where the evidence is susceptible to more than one rational interpretation, the Commissioner’s
decision must be upheld if it is “‘supported by inferences reasonably drawn from the record.’”
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting Batson v. Comm’r of Soc.
Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004)); Lingenfelter, 504 F.3d at 1035.
Page 7 – OPINION AND ORDER
The initial burden of proof rests upon the claimant to establish disability. Howard v.
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 USC § 423(d)(1)(A). The Commissioner has established
a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert,
482 U.S. 137, 140 (1987); 20 CFR §§ 404.1502, 404.920.
At step one, the Commissioner considers whether a claimant is engaged in “substantial
gainful activity.” Yuckert, 482 U.S. at 140; 20 CFR §§ 404.1520(b), 416.920(b). If so, the
claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant has a “medically severe
impairment or combination of impairments.” Yuckert, 482 U.S. at 140–41; 20 CFR
§§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment, she is not
At step three, the Commissioner determines whether the claimant’s impairments, either
singly or in combination, meet or equal “one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert,
482 U.S. at 140–41; 20 CFR §§ 404.1520(d), 416.920(d). If so, the claimant is presumptively
disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant can still perform “past
relevant work.” 20 CFR §§ 404.1520(f), 404.920(f). If the claimant can work, she is not
disabled; if she cannot perform past relevant work, the burden of proof shifts to the
Page 8 – OPINION AND ORDER
At step five, the Commissioner must demonstrate that the claimant can perform other
work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141–
42; 20 CFR §§ 404.1520(g), 416.920(g). If the Commissioner meets this burden, the claimant is
not disabled. 20 CFR §§ 404.1566, 416.966.
At step one, the ALJ found that Kayser had not engaged in substantial gainful activity
since March 27, 2012, the date she applied for SSI benefits. Tr. 20.
At step two, the ALJ found that Kayser has impairments or combinations of impairments
that are severe impairments: arthritis of the hip, COPD, anxiety, and depression. Tr. 20.
At step three, the ALJ found Kayser did not have an impairment or combination of
impairments that met or medically equaled a listed impairment. Tr. 21. The ALJ also found that
Kayser suffered from several non-severe medically determinable impairments including
fibromyalgia, degenerative disc disease, and gastrointestinal reflux disease. Tr. 21.
The ALJ next assessed Kayser’s RFC and determined that she could perform light work
with the following limitations: she can frequently climb, stoop, crouch, kneel, and crawl; she
must avoid concentrated exposure to noxious fumes and odors; she is limited to simple, entry
level work that requires no math calculations; and she can have only occasional interaction with
the public and coworkers. Tr. 24.
At step four, the ALJ found Kayser could not perform any of her past relevant work. Tr.
At step five, the ALJ determined Kayser could perform jobs that exist in significant
numbers in the national economy, including small product assembler and price marker. Tr. 30–
31. The ALJ therefore concluded Kayser is not disabled. Tr. 31.
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Kayser argues the ALJ erred by failing to include all of her severe impairments at step
two, by rejecting her subjective symptom testimony, and by improperly evaluating the vocational
rehabilitation evidence. Pl.’s Opening Br., ECF #16, Pl.’s Reply Br., ECF #18.
Step Two Findings
Kayser contends the ALJ erred at step two by improperly finding that her fibromyalgia
was not formally diagnosed and by failing to label it a “severe” impairment. Pl.’s Opening Br.,
ECF #16, at 4. She argues that under Social Security Ruling (“SSR”) 12-2p, either the 1990 or
the 2010 ACR Preliminary Diagnostic Criteria (“2010 Criteria”) are sufficient to establish a
diagnosis of fibromyalgia, and the ALJ incorrectly found that Kayser did not meet the 2010
Criteria. Id. at 4–7 (stipulating that the 1990 criteria were not met).
At step two, the ALJ determines whether the claimant has a medically severe impairment
or combination of impairments. 20 C.F.R. §§ 404.1520(a), 416.920(a). An impairment is “not
severe” if it “does not significantly limit [the claimant’s] ability to do basic work activities.” Id.
However, “[o]missions at step two are harmless if the ALJ’s subsequent evaluation considered
the effect of the impairment omitted at step two.” Harrison v. Astrue, 2011 WL 2619504, at *7
(D. Or. July 1, 2011) (citing Lewis, 498 F.3d at 911). The ALJ is responsible for resolving
conflicts in the medical record, and may draw inferences about the severity of an impairment
based on the degree of treatment the claimant sought. Carmickle v. Comm’r Soc. Sec. Admin.,
533 F.3d 1155, 1164 (9th Cir. 2008); Flaten v. Sec’y of Health, 44 F.3d 1453, 1464 (9th Cir.
To establish a diagnosis of fibromyalgia under the 2010 Criteria, there must be a “history
of widespread pain” in all quadrants of the body that has persisted for at least three months;
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“repeated manifestations of six or more symptoms, signs, or co-occurring conditions; and
evidence that other disorders that could cause these repeated manifestations of symptoms, signs,
or co-occurring conditions were excluded.” SSR 12-2P (S.S.A.), 2012 WL 3104869.
Here, the ALJ found there was no “objective evidence, beyond [Kayser’s] testimony, that
she suffers from six or more fibromyalgia symptoms, signs, or co-occurring conditions.
Furthermore, in December 2013, her treating provider indicated [Kayser’s] history of
fibromyalgia had ‘resolved.’” Tr. 21 (citing tr. 486). Kayser argues that the ALJ ignored
evidence that she suffered from six fibromyalgia conditions, specifically memory loss, fatigue,
anxiety, depression, blurry vision, and shortness of breath. Tr. 486; ECF #16, at 6. However, as
discussed below, the ALJ’s finding that Kayser did not have fibromyalgia was supported by
Dr. Palke diagnosed Kayser with fibromyalgia in 2014, but also reported that Kayser’s
symptoms appeared to be under control with gabapentin, although Kayser sometimes forgot to
take it. Tr. 553–56. Dr. Robinson, Kayser’s primary care physician, found Kayser’s
fibromyalgia had resolved in December 2013, causing no more than minimal limitations. Tr. 21,
542, 553, 554, 558. Emergency-department records in 2013 and 2014 also listed Kayser’s
fibromyalgia as resolved. Tr. 459, 486, 491. To the extent a conflict exists regarding Kayser’s
fibromyalgia diagnosis, where there was more than one report that Kayser’s fibromyalgia had
resolved, it was reasonable for the ALJ to resolve this conflict and find that Kayser’s
fibromyalgia was not a severe impairment.
Furthermore, the ALJ reasonably concluded that Kayser exaggerated her symptoms, as
discussed further in subsection B, infra. The ALJ also correctly found that Kayser did not meet
six of the listed symptoms, signs, or co-occurring conditions. For example, in her disability
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appeal, Kayser reported “My memory loss i [sic] really bad. I do not remember things, places, or
dates.” Tr. 210. When assessing Kayser’s mental residual functional capacity in October 2012,
Dr. Linda Jensen reported that Kayser had understanding and memory limitations. Tr. 75. In
September 2012, Dr. Ellison reported Kayser’s memory tracking was “a little spotty.” Tr. 440
(finding Kayser’s ability to understand and remember very short and simple instructions was not
significantly limited, but that her ability to understand and remember detailed instructions was
moderately limited). However, the vocational expert found Kayser “remembered multi-step
directions and correct task sequence” and did not note any significant memory deficit, and
Kayser denied memory loss to Dr. Maskimov in 2014. Tr. 250, 561. Therefore, while
reasonable minds could disagree about whether Kayser suffered repeated manifestations of
memory problems, the ALJ’s decision was based on substantial evidence.
Similar problems exist with Kayser’s reported symptoms of fatigue, blurred vision, and
depression. Addressing these symptoms in detail is unnecessary, however, because the 2010
Criteria require the presence of six symptoms, and without a showing that she suffered from
memory loss, Kayser has already failed to meet this requirement. Additionally, although the
ALJ did not discuss the third 2010 Criteria, i.e., whether underling conditions that could explain
those symptoms were excluded, Kayser failed to provide any exclusionary diagnoses.
In any event, the ALJ resolved step two in Kayser’s favor. Tr. 20. Any omission is
harmless if the ALJ considered the effect of Kayser’s alleged impairments in subsequent steps of
the disability evaluation. Lewis, 498 F.3d at 911; Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir.
2005). Because the ALJ decided step two in Kayser’s favor, and considered and discussed her
alleged fibromyalgia symptoms in her residual functional capacity, any error is harmless. Tr.
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There is a two-step process for evaluating a claimant’s testimony about the severity and
limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
2009). “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, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947
F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant need not show that her
impairment could reasonably be expected to cause the severity of the symptom she has alleged;
she need only show that it could reasonably have caused some degree of the symptom.” Smolen
v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
“Second, if the claimant meets this first test, 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.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he
must state which pain testimony is not credible and what evidence suggests the complaints are
not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345–46).
Examples of specific, clear and convincing reasons include medical noncompliance,
conflicting medical evidence, effective medical treatment, inconsistencies either in the claimant's
testimony or between her testimony and her conduct, activities of daily living that are
inconsistent with the alleged symptoms, a sparse or sporadic work history, testimony that is
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vague or less than candid, and testimony from physicians and third parties about the nature,
severity, and effect of the complained symptoms. Tommasetti, 533 F.3d at 1040; Lingenfelter,
504 F.3d at 1040; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). The ALJ’s
credibility decision may be upheld overall even if not all of the ALJ’s reasons for rejecting the
claimant’s testimony are upheld. See Batson, 359 F.3d at 1197. The ALJ may not, however,
make a negative credibility finding “solely because” the claimant’s symptom testimony “is not
substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin., 466
F.3d 880, 883 (9th Cir. 2006).
Effective March 16, 2016, the Commissioner superseded Social Security Rule
(“SSR”) 96-7p governing the assessment of a claimant’s “credibility” and replaced it with a new
rule, SSR 16-3p. See SSR 16-3p, 2016 WL 1119029. SSR 16-3p eliminates the reference to
“credibility,” clarifies that “subjective symptom evaluation is not an examination of an
individual’s character,” and requires the ALJ to consider of all of the evidence in an individual’s
record when evaluating the intensity and persistence of symptoms. Id. at *1–2. Here, because
the ALJ’s credibility determination passes muster under both SSR 96-7p and SSR 16-3p, it is
unnecessary to reach the question of whether SSR 16-3p applies retroactively.
In her application and at the hearing, Kayser alleged that she was unable to work
primarily due to pain. Tr. 55, 200. She stated that she was limited in all postural activities
including standing, walking, sitting, reaching, and stair climbing, as well as memory,
concentration, completing tasks, following instructions, understanding, and using her hands. Tr.
205. She alleged that she cannot handle stress and is easily confused by changes in routine. Tr.
206. She also stated that ADD, depression, anxiety, memory problems, and disc disease
interfered with her ability to perform any activities, including substantial gainful activity. Tr.
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207. However, the ALJ rejected Kayser’s testimony regarding the nature and severity of her
limitations. Tr. 28.
1. Activities of Daily Living
First, the ALJ found that Kayser’s activities of daily living undermined her allegations of
disabling pain. Tr. 28–29. This finding is based on specific, clear and convincing reasons.
An ALJ may rely on a claimant’s activities in evaluating the claimant’s testimony.
Molina v. Astrue, 674 F.3d 1104, 1112–13 (9th Cir. 2012). “[T]he mere fact that a plaintiff has
carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for
exercise, does not in any way detract from her credibility as to her overall disability.” Vertigan
v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). A claimant does not need to be “utterly
incapacitated.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
Here, the ALJ noted that Kayser performed self-care independently, went shopping,
drove a car, 2 went fishing, and used public transportation. Tr. 28–29, 204, 439. The ALJ also
noted that Kayser traveled to Michigan to care for her mother who was recovering from kneereplacement surgery. Tr. 43–44. The Ninth Circuit has held that the ALJ may infer from a
claimant’s ability to travel to care for an ailing relative that the claimant is not as limited as
alleged. Tommasetti, 533 F.3d at 1038. Kayser correctly asserts that the ALJ did not specifically
discuss the nature of her trips or otherwise explain how the trips to Michigan impeached her
testimony. 3 However, overall, the ALJ’s opinion was “sufficiently specific to permit the court
Kayser asserts in her opening brief that she does not own a car, implying that she does not
drive. ECF #16, at 11. However, in her 2012 SSI application, she listed that she owned a 1988
Chevy Van and at the administrative hearing, stated that she and her boyfriend “live in our van.”
Tr. 42, 156.
Kayser testified that she went on two trips to Michigan for a total of seven months. Tr. 43–44.
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to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart,
278 F.3d 947, 958 (9th Cir. 2002).
2. Work History
Second, the ALJ found that Kayser’s work history undermined her complaints of
disabling pain. Tr. 20, 29. This finding is also based on specific, clear and convincing reasons.
An ALJ may consider the claimant’s work history when considering her symptom
testimony. Smolen, 80 F.3d at 1284; Bruton v. Massanari, 268 F.3d 828 (9th Cir. 2001). Here,
the ALJ concluded that “a review of [Kayser’s] work history shows that [she] worked only
sporadically prior to the alleged disability onset date, which raises a question as to whether [her]
continuing unemployment is actually due to medical impairments.” Tr. 29. Indeed, Kayser has
not held a job since 2001. Tr. 20, 76.
Kayser argues that her case is not one in which her work history “undercuts her
assertions,” like Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988), in which the claimant
lacked credibility because while seeking disability benefits, he held himself out as available to
work to receive unemployment benefits. ECF #16, at 12. However, that is not the only way a
claimant’s work history can undermine her credibility. For example, in Thomas v. Barnhart, 278
F.3d 947, 959 (9th Cir. 2002), “the ALJ found that [the claimant] had an ‘extremely poor work
history’ and ‘has shown little propensity to work in her lifetime,’ which negatively affected her
credibility regarding her inability to work.” Here, like in Thomas, the ALJ reasonably
considered Kayser’s lengthy history of unemployment in concluding that her symptoms were not
the cause of her unemployment.
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3. Medical Care Inconsistent with Impairments and Severity
Third, the ALJ found that Kayser’s statements conflicted with the objective medical
record. Tr. 28. An ALJ may not make a negative credibility finding solely because the objective
medical evidence does not support the severity of the claimant’s impairments. Burch, 400 F.3d
at 680. “The rationale for this restriction is that pain testimony may establish greater limitations
than can medical evidence alone.” Id. “Although lack of medical evidence cannot form the sole
basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility
Kayser alleged that she was unable to work primarily due to pain, but the record does not
contain any opinions from treating or examining physicians indicating that Kayser was disabled
or that she could not work. The record is also void of any limitations greater than those
incorporated into the RFC. See tr. 24, 28. For example, an April 2010 x-ray of Kayser’s lumbar
spine was normal despite her complaints of tailbone pain radiating into the left leg. Tr. 301. Her
primary care physician, Dr. Robinson, found no cause for this significant increase in chronic
pain. Tr. 302. Moreover, despite continuing to report severe pain at the administrative hearing,
and despite having been referred to a pain clinic, Kayser has yet to receive treatment from a pain
clinic. Tr. 50.
The ALJ found Kayser “has visited emergency departments repeatedly, but she has not
received the type of medical treatment one would expect. . . .” Tr. 29. Indeed, most of the
medical record deals with the exacerbation of her COPD and asthma symptoms—not treatment
for chronic pain. Additionally, these symptoms have been consistently resolved with medical
treatment. For example, the ALJ found “[s]he has COPD, but she has maintained good oxygen
saturation, despite continuing to smoke tobacco.” Tr. 30. The severity of these symptoms is also
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in question. In fact, Kayser continued to smoke marijuana even though her primary care doctor
made her prescription for pain-relief medication contingent on cessation. Tr. 279, 297. This also
suggests that her pain is not as severe as she reports.
Furthermore, the record is full of instances where Kayser and her medical providers
report that she is depressed or anxious and then that she is not. Tr. 24, 26, 279, 441, 548, 563.
When Dr. Palke recommended she see a counselor to help with complaints of depression, Kayser
did not express interest and did not seek psychiatric treatment. Tr. 26, 548. Regardless, the ALJ
accounted for these impairments in the RFC. Tr. 30.
Together, these conflicts with the objective medical evidence support the ALJ’s finding
that Kayser’s symptom testimony was less than credible.
4. Noncompliant Medical History
Fourth, the ALJ noted that Kayser’s treatment history was sparse and her complaints
sporadic. Tr. 29. The amount of treatment sought for an impairment is “an important indicator
of the intensity and persistence of [a claimant’s] symptoms.” 20 C.F.R. § 416.929(c)(3).
Further, gaps in treatment and evidence of conservative treatment can be sufficient to discount a
claimant’s testimony regarding the severity of an impairment. Burch, 400 F.3d at 681; Parra,
481 F.3d at 750–51.
The ALJ found that Kayser was not complaint with the course of treatment. Tr. 29, 511–
12. An ALJ may not “rely on the claimant's failure to take pain medication where evidence
suggests that the claimant had a good reason for not taking medication.” Fair, 885 F.2d at 602.
Here, there was no good reason for Kayser’s noncompliance.
Kayser would have the court construe the March 2013 treatment note to signify that,
because the note reports she has only a history of poor medication compliance, she is not
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presently noncompliant. Tr. 29, 511, 512. However, this inference is not required, much less
necessary. She could both have a history of noncompliance and be noncompliant at the same
Nevertheless, the ALJ’s finding is supported by substantial evidence. Kayser continued
to smoke cigarettes and marijuana despite the exacerbation of her asthma and COPD, despite
numerous medical practitioners strongly urging her to quit, and despite having free resources
made available to her to help her do so. Tr. 53, 54, 256, 267, 281–88, 293–95, 303, 320, 346,
446, 447, 512, 534, 548. Kayser failed to comply with her medical provider’s recommendations
and repeatedly visited emergency departments for shortness of breath. Tr. 25, 26, 287–91, 297.
She did not seek treatment from September 2011 until early 2013. Tr. 25. She also did not see a
doctor or fill prescriptions for a period in 2011, and she did not seek treatment at multiple local
area indigent and free care she was referred to. Tr. 25, 319. Further, although she complained of
depression and anxiety, she did not express interest in or seek psychiatric treatment. Tr. 548. At
times, she also did not take her medications regularly. Tr. 25, 553–56.
In sum, the ALJ’s rejection of Kayser’s subjective symptom testimony was based on
specific, clear and convincing reasons: her activities of daily living undermined her allegations of
disabling pain, her work history suggests her impairments and symptoms are not the reasons she
is unemployed, her statements and subjective complaints do not comport with the objective
medical evidence, and she has a history of noncompliance in following her course of treatment
and her doctor’s recommendations. These reasons are supported by substantial evidence in the
record. Therefore, the ALJ did not error at this step.
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Vocational Rehabilitation Evidence
Kayser next argues that the ALJ erroneously rejected the vocational rehabilitation
evaluation. Tr. 241–50. Vocational testing revealed Kayser suffered physical discomfort from
using both hands and limitations due to pain in the upper back, shoulders, and arms. Tr. 242–44.
The test coordinator opined that Kayser would be unable to meet the physical endurance
requirements to sustain an adequate level of work performance for an extended period and
concluded that Kayser was “not competitively employable.” Tr. 249–50. The ALJ considered
the vocational rehabilitation evaluation and gave some weight to the statement that Kayser can
perform simple, routine tasks, but rejected the conclusion that Kayser cannot perform
competitive employment, noting that such opinions are reserved for the Commissioner. Tr. 27–
The vocational testing coordinator is an “other source” under the Regulations. SSR 063p. The ALJ is required to provide “germane” reasons for rejecting an “other source” opinion.
Valentine v. Comm’r, 574 F.3d 685, 694 (9th Cir. 2009). While the ALJ is not required to accept
the testing coordinator’s conclusion on the issue of disability, he was required to provide
germane reasons for rejecting the limitations set forth in the vocational evaluation. Id.; SSR 965p.
Here, in his evaluation of the evidence, the ALJ noted that the vocational evaluator based
his conclusions on Kayser’s self-reports regarding pain, which the ALJ discredited. The ALJ is
entitled to discount an opinion when it is based on a claimant’s subjective descriptions of pain,
when that claimant’s testimony has been properly rejected. Batson, 359 F.3d at 1195. As
discussed above, the ALJ provided legally sufficient reasons discounting Kayser’s symptom
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testimony. Therefore, the ALJ provided a germane reason for rejecting the vocational
Furthermore, and notably, no medical professional—including Kayser’s primary care
physician—opined that she cannot work, regardless of the restrictions the ALJ provided for in
her residual functional capacity. The only medical opinion evidence regarding the ultimate issue
of disability on record is from state agency medical and psychological consultants, whose
opinions the ALJ heavily relied on in forming the RFC. While Kayser would prefer a more
favorable interpretation of the evidence in the record, the court may not substitute its judgment
for that of the Commissioner. Parra, 481 F.3d at 746.
For the reasons discussed above, the Commissioner’s decision that Kayser is not disabled
is supported by substantial evidence and based on proper legal standards and is therefore
IT IS SO ORDERED.
DATED this 18th day of May, 2017.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge
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