Lynch v. Commissioner Social Security Administration
Opinion and Order. Signed on 4/3/2017 by Judge Malcolm F. Marsh. (ma2)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:16-cv-00357-MA
LEA ANN LYNCH,
COMMISSIONER SOCIAL SECURITY
LISA R. J. PORTER
5200 S.W. Meadows Rd., Suite 150
Lake Oswego, OR 97035
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
District of Oregon
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
GERALD J. HILL
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Ave., Suite 2900, MIS 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
Plaintiff Lea Ann Lynch seeks judicial review of the final decision of the Conunissioner of
Social Security denying her application for a period of disability and disability insurance benefits
("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403, and application for
Supplemental Security Income ("SSI") disability benefits under Title XVI ofthe Social Security Act,
42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). For the reasons that follow, I affirm the Commissioner's decision.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff protectively filed applications for DIB and SSI on Januaiy 30, 2012, alleging
disability beginning June 6, 2008, due to depression, anxiety, migraines, gluten intolerance, postsurgical foot tumor, regional complex pain syndrome, fibromyalgia, dyslexia, and shingles. Tr. Soc.
Sec. Admin. R. ("Tr.") at 89, ECF Nos. 12-13. Plaintiffs claims were denied initially and upon
reconsideration. Plaintiff filed a request for a hearing before an administrative law judge ("ALJ").
The ALJ held a hearing on June 2, 2014, at which Plaintiff appeai·ed with her attorney and testified.
A vocational expet1, Steve Duchesne, also appeared at the hearing and testified. On August 1, 2014,
the ALJ issued an unfavorable decision. The Appeals Council denied Plaintiffs request for review,
and therefore, the ALJ' s decision became the final decision of the Conunissioner for purposes of
Plaintiff was born in 1963, and was 45 years old on the alleged onset of disability date.
Plaintiff has a high school education, has some training as a massage therapist, and at the time of the
hearing was emolled pati-time in conununity college. Plaintiff has past relevant work as a location
2 - OPINION AND ORDER
manager, and also has worked as a food demonstrator, intake worker/eligibility worker, and massage
THE ALJ'S DISABILITY ANALYSIS
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 C.F.R. §§ 404.1520, 416.920.
Each step is potentially dispositive. The claimant bears the burden of proof at steps one tlu·ough
four. See Valentine v. Commissioner Soc. Sec. Adm in., 574 F.3d 685, 689 (9th Cir. 2009); Tackett
v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner
to show that the claimant can do other work which exists in the national economy. Hill v. Astrue,
698 F.3d 1153, 1161 (9th Cir. 2012).
The ALJ found that Plaintiff meets the insured status requirements tlu·ough June 30, 2014.
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since her
alleged onset of disability. At step two, the ALJ found that Plaintiff had the following severe
impairments: fibromyalgia, depressive disorder, pain disorder with both psychological and general
medical factors, personality disorder, and attention-deficit hyperactivity disorder ("ADHD"). At step
three, the ALJ found that Plaintiffs impairments, or combination ofimpainnents, did not meet or
medically equal a listed impairment.
The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perf01m light work
with additional limitations: Plaintiff can occasionally balance, stoop, kneel, crouch, and crawl; must
avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation; can understand,
remember, and cany out simple, repetitive, routine tasks; and can tolerate occasional contact with
the general public.
3 - OPINION AND ORDER
At step four, the ALJ found that Plaintiff is unable to perf01m her past relevant work. At step
five, the ALJ found that considering Plaintiffs age, education, work experience, and residual
functional capacity, jobs exist in significant numbers in the national economy that Plaintiff can
perfotm, including such representative occupations as: electronics assembler, mail clerk, and
housekeeper. Accordingly, the ALJ concluded that Plaintiff has not been under a disability under
the Social Security Act from June 6, 2008 through the date of the decision.
ISSUES ON REVIEW
On appeal to this cou1t, Plaintiff contends the following errors were committed: (1) the ALJ
improperly evaluated her testimony; (2) the ALJ improperly evaluated some of the medical evidence;
(3) the ALJ improperly determined she does not meet Listing 12.04; and (4) the RFC and
hypothetical to the vocational expe1t ("VE") fail to incorporate all of her mental health functional
limitations. The Commissioner argues that the ALJ' s decision is supported by substantial evidence
and is free of legal error. Alternatively, the Commissioner contends that even if the ALJ ened,
Plaintiff has not demonstrated hmmful enor.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is
more that! a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to supp01t a conclusion." Hill, 698 F .3d at 1159 (internal quotations
omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether it supp01ts or
detracts from the Commissioner's decision. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014);
4 - OPINION AND ORDER
lvfartinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be
upheld, even if the evidence is susceptible to more than one rational interpretation.. Batson v.
Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the
Commissioner's conclusion, the Commissioner must be affomed; "the court may not substitute its
judgment forthat of the Commissioner." Edlundv. 1\Iassanari, 253 F.3d 1152, 1156 (9th Cir. 2001 );
Garrison, 759 F.3d at 1010.
The ALJ Did Not En in Discounting Plaintiffs Credibility
To determine whether a claimant's testimony regarding subjective pain or symptoms is
credible, an ALJ must perform two stages of analysis. 20 C.F.R. §§ 404.1529, 416.929. The first
stage is a threshold test in which the claimant must produce objective medical evidence of an
underlying impairment that could reasonably be expected to produce the symptoms alleged. i\!folina
v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
2008). At the second stage of the credibility analysis, absent affirmative evidence of malingering,
the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony
regarding the severity of the symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d
1155, 1166 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
The ALJ must make findings that are sufficiently specific to pe1mit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763
F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors the ALJ may consider when
making such credibility dete1minations include the objective medical evidence, the claimant's
treatment hist01y, the claimant's daily activities, inconsistencies in testimony, effectiveness or
5 - OPINION AND ORDER
adverse side effects of any pain medication, and relevant character evidence. Ghanim, 763 F.3d at
1163; Tommasetti, 533 F.3d at 1039.
At the hearing, Plaintiff testified that she is taking two classes in college (seven credit hours),
has a 3.00 grade point average ("GPA"), and is tiying to obtain a degree in Communications. Tr.
61-62. Plaintiff testified that she receives accommodations at school with dictation due to her
dyslexia. Tr. 62. Plaintiff testified that she has tutoring two hours per week, attends classes for two
hours a day, four days a week, and works in the libra1y eight hours a week. Tr. 52, 62-63. Plaintiff
testified that she worked full-time in 2011 for three months, and also has performed some part-time
work doing wine demonstrations. Tr. 53. Plaintiff described her past work with movie production
as scouting locations for filming. Tr. 55. Plaintiff testified that she can no longer perfo1m any kind
of prior work because she cannot physically work the long hours, sometimes lasting 14 hours, and
needs to rest after taking a two hour class. Tr. 56.
Plaintiff described being out of breath after walking sh01t distances and that she is in pain
due to her foot issues and fibromyalgia. Tr. 58-59. Plaintiff stated that she has pain in her shoulders,
but that she can reach overhead and reach in front of her. Tr. 65-66. Plaintiff described difficulty
with vomiting and that she has IBS. Tr. 60. Plaintiff testified that she takes zoloft and lorazepam
for her mental health issues and that they help a little bit, but that she does not take any pain
medication. Tr. 59, 66.
Plaintiff testified that she is able to drive, does her own shopping, is able to clean house in
small increments, and does her own laund1y. Tr. 64. Plaintiff stated that she spends time reading
and watching TV, and that she uses the computer to do homework and look for jobs. Tr. 68.
6 - OPINION AND ORDER
·Plaintiff testified that her biggest hurdle to employment is that she "can't stand being around people
right now." Tr. 75. Plaintiff also stated that she cannot handle criticism. Tr. 75.
In a Februmy 8, 2012 Function Report, Plaintiff reported that she gets sick from her gluten
intolerance, that she cannot stand on her feet, and that her muscles hurt from fibromyalgia. Tr. 266.
Plaintiff described a typical day as taking a shower, washing clothes, feeding the animals, making
lunch, looking for work, eating dinner, then going to bed. Tr. 227. Plaintiff stated that the pain in
her stomach from her gluten intolerance wakes her at night. Tr. 227. Plaintiff indicated no difficulty
with personal cm·e and needs no reminders to take medication. Tr. 227-28. Plaintiff stated that she
perfo1ms all cleaning, laund1y and yard care. Tr. 228. Plaintiff drives, can shop independently for
groceries once a month for two hours. Tr. 229. Plaintiff stated she leaves the house daily to run
errands. Tr. 229. Plaintiff described that she no longer plays sports due to pain, and that she spends
time with friends occasionally. Tr. 230. Plaintiff indicated she has trouble lifting and standing due
to the pain in her foot, can walk half a mile before needing to rest for 15 minutes, and can
concentrate for 30 minutes. Tr. 231. Plaintiff stated she has no trouble with authority figures, gets
physically sick from stress, and has vertigo and tinnitus. Tr. 232. Plaintiff indicated she takes
trazodone and flexeril. Tr. 233.
In the decision, the ALJ offered specific, clear and convincing reasons for the adverse
credibility determination, including: (1) inconsistency with objective medical records; (2)
inconsistency with reported daily activities; (3) active pursuit of employment; and (4) receipt of
7 - OPINION AND ORDER
Inconsistency with lvfedical Record
Contradiction with the medical record is a sufficient basis for discounting a claimant's
credibility. Carmickle, 533 F.3d at 1161; see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.
2005) (holding that an ALJ may consider lack of medical evidence but it cannot be the only factor
supporting an adverse credibility finding); Rollins v. i\Iassanari, 261 F.3d 853, 857 (9th Cir. 2001)
("While subjective ... testimony cannot be rejected on the sole ground that it is not fully
conoborated by objective medical evidence, the medical evidence is still a relevant factor in
determining the severity of the claimant's symptoms and their disabling effects." (citing 20 C.F.R.
§ 404.1529(c)(2)). An ALJ also may rely on a claimant's conservative treatment to discredit the
severity of a claimant's allegations where the claimant has not provided a good reason for failing to
seek a more aggressive course. Carmickle, 533 F.3d at 1162.
The ALJ found that Plaintiffs allegations of difficulties with ambulation and widespread
body pain were not as debilitating as she alleged. Here, the ALJ discussed that Plaintiffs claims
were undermined by the medical records of several providers, including a normal physical
examination in April 2011, except for some range of motion limitations in her left toes following
foot surgery; that she had normal range of motion in all extremities in May 2012, and no focal
tenderness; neurologic findings were intact; and that in she ambulated without assistance and had
a steady gait despite pain complaints. Tr. 501-02, 768, 774, 969-70, 1045-46. And, the ALJ
discussed that in March 2014, she had good range of motion in her back and neck, with no
tenderness and no edema. Tr. 32, 950.
Additionally, the ALJ found her allegations of severe body pain were inconsistent with her
January 2014 report that she takes flexeril for her fibromyalgia pain only once or twice a month. Tr.
8 - OPINION AND ORDER
32, 1040-41. Additionally, the ALJ discussed that Plaintiff declined refenals for acupuncture,
physical therapy, and a pain management social worker and was instead staited on a very low dose
of nortriptyline. Tr. 26, 1034. And, the ALJ noted Plaintiffs allegations of chronically debilitating
pain were inconsistent with her hearing testimony that she takes no pain medication. Tr. 59. The
ALJ' s findings are wholly supp011ed by substantial evidence. Based on the longitudinal treatment
record, the ALJ could reasonably find that Plaintiffs claims of disabling body pain and difficulty
ambulating are not fully suppo1ted by the objective medical record. 1
The ALJ found that Plaintiffs psychiatric symptoms wax and wane, but are not disabling.
The ALJ detailed numerous treatment notes indicating no psychiatric difficulties, including an
October 2010 office visit and an April 2011 treatment note showing no mood difficulties. Tr. 33,
501-02. The ALJ discussed treatment notes from Brie Petrie, Psy.D., to whom Plaintiff self-refened
for counseling. Tr. 33, 623-24. Dr. Petrie treated Plaintiff occasionally from August 2011 through
April 2012. Tr. 623-43. Dr. Petrie noted that Plaintiff reported feelings of sadness, insomnia,
fatigue, worthlessness, and difficulty concentrating. As the ALJ accmately indicated, Dr. Petrie
diagnosed mild depression with moderate symptoms. Notably, there is an absence of severe
depressive symptoms described in Dr. Petrie's treatment notes. To be sure, the ALJ's findings that
Plaintiffs depressive symptoms wax and wane, but are not disabling, are clearly supported by Dr.
At step two, the ALJ thoroughly discussed numerous other conditions and alleged
impairments, such as complex regional pain syndrome, irritable bowel syndrome, right shoulder
problems, chronic fatigue syndrome, neuropathy, and ve1tigo, that are not supported by objective
medical evidence. Tr. 26-28. The ALJ thoroughly discussed the objective medical evidence and
found these impairments were not as debilitating as alleged, and detennined they were not severe
impairments. Tr. 26. Although not challenged by Plaintiff, nevertheless the court has reviewed
those findings and readily concludes they are supported by substantial evidence.
9 - OPINION AND ORDER
The ALJ also discussed that in December 2013, Plaintiff complained of increasing
depression, but that her mood and affect were normal, as were her thought content and behavior.
T.r 33, 1044-46. The provider recommended increasing Plaintiffs zoloft to address her concerns,
which Plaintiff agreed to do after school finals were completed. Tr. 1046. As the ALJ accurately
discussed, in January 2014, Plaintiff reported mild anxiety for which she takes lorazepam twice a
month, and did not appear depressed. Tr. 33, 968-69. And, as the ALJ discussed, treatment notes
from Mary E. Joyce reveal that Plaintiff reported improved mood, and "feeling better" in Febrnaty
2014 group and individual counseling sessions. Tr. 33, 1064-67. And, as the ALJ correctly noted,
Ms. Joyce's notes revealed that Plaintiff continued to report improvement in March 2014. Tr. 1058.
The ALJ found that based on the record, Plaintiffs mental health symptoms demonstrate that she
experiences occasional down cycles, but her symptoms are not severe enough to prevent her from
working, and discounted Plaintiffs allegations of disabling depression and anxiety based on their
lack of objective record support.
The ALJ must review Plaintiffs treatment notes in light of overall diagnostic picture.
Ghanim, 763 F.3d at 1163; Garrison, 759 F.3d at 1017. Plaintiff has reported symptoms of mild
depression and anxiety with occasional bouts of more severe depression. Examining the record as
a whole, I conclude that the longitudinal picture of Plaintiffs mental health supports the ALJ' s
finding that the severity of Plaintiffs subjective symptoms is inconsistent with the clinical evidence.
Even if the objective medical evidence could support Plaintiffs interpretation, the ALJ's
determination is reasonable and must be upheld. Batson, 359 F.3d at 1193.
10- OPINION AND ORDER
Inconsistency with Reported Activities
The ALJ reasonably determined that Plaintiffs activities were inconsistent with her
allegations conceming her limitations: Engaging in daily activities that are incompatible with the
severity of symptoms alleged can support an adverse credibility detennination. Ghanim, 763 F.3d
at 1165; A'1olina, 674 F.3d at 1112-13 (holding that a claimant's daily activities may be grounds for
discrediting claimant's testimony). Contradiction with a claimant's activities of daily living is a
clear and convincing reason for rejecting a claimant's testimony. Tommasetti, 533 F.3d at 1039. As
the ALJ accurately detailed, Plaintiff engages in numerous activities that are inconsistent with her
allegations that she is unable to work due to her severe mental and physical limitations. Here, the
ALJ detailed that Plaintiff gets together with friends occasionally, spends time reading, watching
television, doing homework, is able to use a computer, and checks her Face book account, but does
not post anything. Tr. 32-33. The ALJ also discussed Plaintiffs ability to attend college classes,
work at the school libraty for eight hours a week, maintain a 3.0 GPA, and attend tutoring for two
hours a week, and found them inconsistent with her allegations that she has disabling limitations in
reading and mathematics. The ALJ reasonably found that these activities demonstrate that Plaintiff
is able to persist, perform simple tasks, and engage in basic social interactions contrary to her
allegations. Tr. 33.
The ALJ also reasonably discounted Plaintiff's allegations of disabling physical limitations
based on some of the activities detailed in the record, such as Plaintiffs ability to do perfotm all
personal care, prepare meals, perform household cleaning, laundry, grocety shopping, and yard work.
Additionally, the ALJ detailed that in Januaty and Februaty 2012, Plaintiff admitted she performed
household repairs, is able to drive a car, and leaves the house daily to run etTands. Tr. 33. The
11 - OPINION AND ORDER
ALJ's findings concerning Plaintiffs activities are backed by substantial evidence in the record.
Given the multitude and type of activities Plaintiff admitted to performing, the ALJ rationally found
that Plaintiffs activities undetmined her allegations of severe physical limitations impeding her
ability to perform any work. I conclude that when the ALJ' s first and second reasons are combined,
they provide clear and convincing support for the ALJ's adverse credibility detetmination. },;Jolina,
674 F.3d at 1113 (finding claimant's daily activities and inconsistency with medical evidence
suppo1ied adverse credibility determination).
Active Pursuit ofEmployment
The ALJ properly discredited Plaintiff because she was actively pursuing employment and
worked part-time while asserting that she is totally disabled. Bray v. Comm 'r Soc. Sec. Admin., 554
F.3d 1219, 1227 (9th Cir. 2009) (discounting claimant's credibility where she recently worked and
sought out other employment while pursuing disability). In the decision, the ALJ detailed that a
physician's November 2009 treatment notes reveal that Plaintiff asked to be released to work only
three months after she requested that her disability be extended, suggesting that her condition had
improved. Tr. 421-25. Plaintiff argues that she requested to be returned to work because her
disability benefits had been exhausted, not because her condition improved. Even ifthe record could
support Plaintiffs interpretation, the ALJ's interpretation is rational and supported by inferences
reasonably drawn from the record; it will not be disturbed. lvfolina, 674 F.3d at 1111.
Additionally, the ALJ noted that in September 2011, Plaintiff expressed frustration with her
inability to find employment after moving to Oregon. The ALJ also detailed that in a 2012 Function
Report, Plaintiff indicated that looking for work was a daily activity. Tr. 34, 227. Moreover, the
ALJ noted that Plaintiff rep01ied to her counselor that she enjoyed working in March 2012, worked
12 - OPINION AND ORDER
in film production in Louisiana in May 2012, in December 2012 was working picking up and
delivering phone books, and testified at the hearing she was working eight hours a week in the
Tr. 628, 631-32. The ALJ discussed that Plaintiff was employed pati-time doing wine
sampling demonstrations. Tr. 34, 631-32. The ALJ noted that Plaintiff expressed concern regarding
her job skills as a barrier to employment, not her alleged impairments. Tr. 641-43.
Plaintiff suggests that she stopped working delivering phone books due to her iiTitable bowel
syndrome symptoms and that the ALJ et1'ed in discounting her credibility on this basis. However,
as the ALJ discussed, Plaintiff underwent a full gastroenterology work-up that revealed no severe
abnormalities, and the ALJ noted that her alleged digestive symptoms did not prevent her from
attending school and working in the library. Tr. 977-81. Based on the lack of objective support, the
ALJ found that Plaintiffs symptoms were episodic and not as debilitating as alleged. Tr. 26. In
summary, Plaintiffs continued search for work evidences behavior that the ALJ reasonably found
inconsistent with her allegations of disability. The ALJ' s findings are fully supported by substantial
evidence and therefore are entitled to deference. Burch, 400 F.3d at 679 ("Where evidence is
susceptible to more than one rational interpretation, it is the ALJ' s conclusion that must be upheld").
Receipt of unemployment benefits is one of many factors that may be considered when
evaluating disability. 20 C.F.R. §§ 404. l 512(b)(3), (5); 416.912(b)(3), (5). Receipt of unemployment
benefits may undermine a claimant's alleged inability to work if the record establishes that the
claimant held herself out as available for full-time work. Carmickle, 533 F.3d at 1161-62. At the
hearing, the ALJ inquired whether Plaintiff collected unemployment benefits in California and
whether she drew unemployment for full-time work. Tr. 70. Plaintiff confitmed that she received
13 - OPINION AND ORDER
them based on a full-time job and that she drew unemployment benefits until they were exhausted.
Tr. 70. Additionally, the ALJ inquired whether Plaintiff was required to ce1iify that she was ready,
willing, and able to work. Tr. 70. Plaintiff confitmed that was required to make that certification.
Plaintiff argues the ALJ erroneously discredited her on this basis. In her Reply, Plaintiff
contends that she did not ce1iify that she was able to work a full-time schedule and relies on Oregon
administrative regulations that define "available for work" as meaning either full- or paii-time work.
See PJ's Reply Br. at 3, ECF No. 18 (citing Or. Admin. R. 471-30-036(2)(b)). Plaintiffs argument
is undermined by her clear hearing testimony. Here, the ALJ specifically referred to California
unemployment benefits, and Plaintiff clearly responded that she received benefits based on full-time
work. Tr. 70. Cf Carmickle, 533 F.3dat 1161-62 (determining it was not clear from record whether
claimant held himself out as available for full- or part-time work); lvii/ler v. Colvin, No. CV 131259-E, 2014 WL 1873276, *4 (C.D. Cal. May 9, 2014) (discussing Oregon and California
unemployment benefits and holding oneself out as available for full-time or part-time work). Thus,
the ALJ reasonably discounted Plaintiffs credibility because she drew full-time benefits and held
herself out as available for work. The ALJ' s findings are wholly supp01ied by substantial evidence,
and this provides a specific, clear and convincing reason to discount Plaintiffs subjective
allegations. i\!Jolina, 674 F.3d at 1111 (statingALJ's findings must be upheld ifbased on inferences
reasonably drawn from the record).
Considering the record as a whole, Plaintiffs statements that she continued to seek
employment while alleging disability, her receipt of unemployment benefits for full-time work, the
inconsistency of her reported activities, and the lack of objective medical evidence to corroborate
14- OPINION AND ORDER
the extent of her pain, physical, and mental limitations constitute clear and convincing reasons to
discredit her credibility.
The ALJ Did Not Err in Evaluating the Medical Evidence
In general, the opinion of a treating physician is given more weight than the opinion of an
examining physician, and the opinion of an examining physician is afforded more weight than the
opinion of a nonexamining physician. Ghanim, 763 F.3d at 1160; Garrison, 759 F.3d at 1012; Orn
v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). "If a treating physician's opinion is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the] case record, [it will be given] controlling weight." Orn, 495 F.3d
at 631 (internal quotations omitted)(alterations in original); 20 C.F.R. § 416.927(c). To reject the
uncontradicted opinion of a treating physician, the ALJ must provide "clear and convincing reasons
that are suppo1ted by substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
If the treating physician's opinion is contradicted, the ALJ must consider how much weight
it is entitled to considering the factors in 20 C.F.R. § 416.927(c)(2-6). The factors include the length
of the treatment relationship, the frequency of examination, the nature and suppo1tability of the
opinion, and its consistency with other evidence in the record as a whole. 20 C.F.R. § 416.927(d)(26); Ghanim, 763 F.3d at 1161. If a treating or examining doctor's opinion is contradicted by another
doctor's opinion, it may be rejected by specific and legitimate reasons. Taylor v. Commissioner Soc.
Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). However, "[t]he ALJ need not accept the opinion
of any physician, including a treating physician, ifthat opinion is brief, conclusmy, and inadequately
supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
15 - OPINION AND ORDER
Only physicians and ce1iain other qualified specialists are considered"[a]cceptable medical
sources." lvfolina, 674 F.3d at 1111 (alteration in original); see also 20 C.F.R. § 416.913(a). Nurse
practitioners and therapists are considered "other sources." 20 C.F.R. § 416.913(d). AnALJ must
evaluate the opinions from other sources, and may discount such testimony if the ALJ provides
ge1mane reasons for doing so. Ghanim, 763 F.3d at 1161; 20 C.F.R. § 416.927(c).
Plaintiff argues that the ALJ failed to provide adequate reasons for discounting some of the
limitations and opinions of Paul Rethinger, Ph.D.; James E. B1yan, Ph.D.; John F. Elliot, M.A.;
Frances Nause, M.Ed.; and Mary Joyce, L.P.C.
Plaintiff complains that despite giving weight to the opinion of Dr. Rethinger, the ALJ erred
by failing to incorporate her difficulties with pace into the RFC. I disagree. Dr. Rethinger is a
nonexamining agency physician who completed a Mental Residual Functional Capacity Assessment
on October 16, 2012. Tr. 121. Dr. Rethinger reviewed records and assessed that Plaintiff is
moderately limited in her ability to understand and remember detailed instructions, and that she has
difficulty with pace and vigilance and would have difficulty recalling detailed tasks. Tr. 124. Dr.
Rethinger also opined that Plaintiff is moderately limited in her ability to maintain attention and
concentration for extended periods, and would have difficulty sustaining concentration on difficult
tasks due to her Attention Deficit Hyperactivity Disorder ("ADHD"). Tr. 124.
In the decision, the ALJ did not adopt Dr. Rethinger' s conclusion that Plaintiff"has difficulty
with pace, as she has attended college classes and maintained a 3.0 GPA and did fairly well on
testing during mental health evaluations." Tr. 35. Additionally, the ALJ limited Plaintiff to simple,
routine tasks to "account for any difficulties with pace that may occur." Tr. 35. The ALJ otherwise
16- OPINION AND ORDER
found Dr. Rethinger's opinion to be consistent with Plaintiffs reported activities, observations of
treatment providers and evaluators, and gave his opinion "great weight." Tr. 35.
Plaintiff contends that the ALJ erred because her limitations with pace are substantiated by
her other treatment providers, citing records from her therapist John Elliott and examining physician
Dr. Bryan. Tr. 765, 904. I disagree. As will be discussed in detail below, the ALJ did not err in
giving Mr. Elliott's opinion no weight, and the RFC limiting Plaintiff to simple, routine tasks clearly
is consistent with Dr. Bryan's evaluation. Additionally, the ALJ could reasonably find that Plaintiff
could perform simple routine tasks based on her ability to take college classes, work in the library,
and maintain a 3.0 GPA. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008)
(holding ALJ did not err in limiting claimant to simple routine work where claimant engaged in
activities such as housework, hobbies, cooking, and reading). Inconsistency between a between a
physician's opinion and claimant's daily activities can be a specific and legitimate reason to discount
that opinion. 1\Iorgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600-02 (9th Cir. 1999). As
discussed above, the ALJ's findings concerning Plaintiffs activities are supported by substantial
evidence in the record, and the ALJ could find Dr. Rethinger's pace limitations did not reflect
Plaintiffs actual abilities. The ALJ' s interpretation is reasonable, and will not be disturbed.
Moreover, as the ALJ indicated, an RFC limiting Plaintiff to simple, routine tasks is clearly
consistent with Dr. Rethinger' s opinion, which indicated that Plaintiff was "not significantly limited"
in her ability to understand, remember, and cany out sho1t and simple instructions, and perform
activities within a schedule, sustain a routine, and make simple work-related decisions. Tr. 124.
Thus, the ALJ did not e11' in discounting Dr. Rethinger' s pace limitations, and the RFC adequately
17 - OPINION AND ORDER
captures the remaining limitations credited by the ALJ. Id. at 1174. The ALJ' s interpretation of Dr.
Rethinger's opinion is reasonable, backed by substantial evidence, and will not be disturbed.
Plaintiff argues that the ALJ failed to incorporate Dr. Biyan's assessed limitations in
concentration. Dr. Bryan performed a nueropsychological evaluation of Plaintiff on Janumy 12,
2012. Tr. 897. Dr. Bryan conducted a series of objective tests, including but not limited to the
California Verbal Leaming Test-II, Rey Complex Figure Test, Trail Making Test Pmis A & B,
Wechsler Abbreviated Scale of Intelligence ("WASI"), Wechsler Memory Scale-IV (WMS-IV,
Logical Memmy & Visual Reproduction substests), WMS-III Working Memmy Subtests, and the
Wisconsin Cm·d So1iing Test-Computer Version-3. Tr. 897. Dr. Biyan was asked to perfo1m
cognitive and mental health testing to assess factors that may impede Plaintiffs independent
functioning for vocational rehabilitation services. Tr. 897. Plaintiff reported chronic physical pain
that reaches "near-maximum subjective levels (10 on a 0-10 scale) eve1y few days" and that she
requires frequent breaks. Tr. 899. Plaintiffrepo1ied to Dr. Biyan that stress aggravates her physical
pain and fatigue, that she suffers situational depression, and suffers from dyslexia, regional complex
pain syndrome, fibromyalgia, nausea and stomach pain. Plaintiff also reported to Dr. B1yan that she
is independent with self-care, housekeeping, has perfo1med home repairs and painting, and enjoys
canvas painting. Tr. 899-900.
On testing, Dr. Biyan found Plaintiffs intellectual functioning to be in the average range, and
her attention, concentration, and speed to range from average on the WMS-III Working Memo1y
Index to extremely low on the Trail Making Test A & Band Stroop Test. Tr. 904. Dr. Biyan found
Plaintiffs language and visual-constructional functioning to be average, while her new learning and
18 - OPINION AND ORDER
memory to range from high average to borderline. Tr. 904-05. Dr. Bryan's testing showed that
Plaintiffs reading recognition was sufficient to allow her to understand most common information,
such as newspapers, magazines and instructions, and her mathematics reasoning sufficient to perf01m
daily monetary transactions and measuring. Tr. 905-06. Dr. B1yan also indicated that Plaintiffs
psychological profile was significant for "extreme endorsement of somatic health complaints." Tr.
906. Dr. B1yan diagnosed Attention Deficit Hyperactivity Disorder, Depressive Disorder, and Pain
Disorder with psychological factors and general medical condition. Tr. 907. Dr. B1yan opined that
Plaintiffs strengths were her ability to understand the gist of written materials at an upper high
school level, and opined that "some of the Extremely Low speed ratings during testing are influenced
by a somatoform style, given that there is no clear, objective basis for them[.]" Tr. 908. Dr. B1yan
recommended that Plaintiff engage in comprehensive mental health treatment, including counseling
and antidepressant medication, and that a skills- or trade-oriented educational program would best
suit Plaintiffs academic skill level. Tr. 907-08.
The ALJ accurately discussed Dr. B1yan's opinion and concluded that his objective findings
show some functional limitations, but that her limitations are not disabling. The ALJ concluded that
when examining Plaintiffs abilities, Dr. B1yan's opinion is consistent with the capacity for simple
routine tasks with limited social interactions. Tr. 30, 32-34.
According to Plaintiff, the ALJ en-ed by discounting the Stoop Effect Test, on which Plaintiff
tested "Extremely Low." Tr. 904. I disagree. Contra1yto Plaintiffs suggestion, the ALJ thoroughly
and specifically discussed Dr. B1yan's "low speed ratings," which includes the Stroop Effect Test,
and that Dr. B1yan found no clear, objective basis for the low ratings, and that Plaintiffs somatofo1m
disorder may be the cause. Tr. 30, 34. Here, the ALJ discussed that these findings were inconsistent
19 - OPINION AND ORDER
with Plaintiffs ability to purse a degree and earn a 3.0 GPA, and that Plaintiffs actual functioning
exceeds the limitations found in the clinical setting, and favored the opinion of Dr. Rethinger on this
point. Tr. 30. Moreover, the ALJ indicated that while Plaintiffs somatic disorder may be the cause
of some speed deficits, it could also be that Plaintiffs subjective symptoms are not as severe as
alleged. Tr. 34. As discussed above, the ALJ appropriately discounted Plaintiffs subjective
symptoms. Thus, the ALJ found Dr. Bryan's opinion as to Plaintiffs processing speed to be
inconsistent with Dr. Rethinger, inconsistent with other record evidence, and premised on Plaintiffs
subjective symptoms which the ALJ found unreliable. Accordingly, the ALJ has identified specific
and legitimate reasons for discounting Dr. B1yan's opinion. Thomas, 278 F.3d at 957 (ALJ properly
rejected treating physician's opinion where ALJ made findings setting out a detailed summaiy of
facts, conflicting evidence, and stating interpretation of that evidence, and making findings);
Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding ALJ properly discounted
treating physician's opinion whose conclusions were based largely on claimant's subjective
complaints that lacked credibility). The ALJ's findings are wholly supported by substantial
evidence, is a rational interpretation of the record, and the comt will not engage in second-guessing.
Tr. 30, 32, 34. Edlund, 253 F.3d at 1156.
Plaintiff contends that the ALJ ened in rejecting Mr. Elliott's opinion. The ALJ gave Mr.
Elliot's opinion "no weight." Mr. Elliott was Plaintiffs treating mental health therapist from
Januaiy2006 to July 2009. Tr. 761. Mr. Elliott is not an acceptable medical source, but is an "other
source" whose opinion the ALJ may consider pursuant to 20 C.F.R. §§ 404.1513(d), 416.913(d).
20 - OPINION AND ORDER
The ALJ was required to provide "gennane reasons" to discount Mr. Elliott's opinion. Molina, 67 4
F.3d at 1111. The ALJ readily met this standard.
Mr. Elliott provided a report dated April 30, 2012 in which he indicated that at the time he
treated Plaintiff, she presented with problems of severe depression, anxiety with panic attacks,
hostility, decompensation, and chronic pain. Tr. 763. Mr. Elliott diagnosed bipolar disorder,
depressed, without psychotic features and alcohol dependence in remission. Tr. 765. Mr. Elliott
indicated that Plaintiff is not competent to sustain employment and opined that Plaintiff suffered
marked limitations in activities of daily living, extreme difficulties with social functioning, extreme
problems with concentration, persistence and pace, and has experienced four or more episodes of
decompensation of extended duration. Tr. 766.
In the decision, the ALJ accurately discussed Mr. Elliott's opinion and gave his opinion "no
weight" because it is not suppmied by any objective findings in the record. Inconsistency with
objective medical evidence is a specific and legitimate reason to discount a treating physician's
opinion. Batson, 359 F.3d at 1196 (ALJ may discredit treating physicians' opinions that are
unsuppo1ied by objective medical findings or the record as a whole); Johnson v. Shala/a, 60 F.3d
1428, 1432 (9th Cir. 1995) (inadequate clinical findings provide clear and convincing reasons for
ALJ to reject treating physician's opinion). Specifically, the ALJ rejected Mr. Elliott's opinion that
Plaintiff has suffered four episodes of decompensation each of extended duration, because it is
wholly unsuppmied by any record evidence whatsoever. I note that Mr. Elliott's underlying
treatment notes are not part of the record before me. As the ALJ detailed, the record is devoid of any
evidence that Plaintiff has suffered even one episode of decompensation previously, let alone that
she has suffered four or more. Tr. 35, 766. This reason alone is ge1mane to Mr. Elliott, and would
21 - OPINION AND ORDER
constitute a clear and convincing reason if a higher level of justification were required. See 1'1Ji/ler
v. Comm 'r Soc. Sec. Adm in., Case No. 3:15-cv-02132-MA, 2016 WL 6868154, *7 (D. Or. Nov. 21,
2016) (upholding ALJ's rejection of physician's opinion where there was no evidence of
decompensation). The ALJ's finding is supported by substantial evidence and singularly calls into
question the validity of Mr. Elliott's opinion.
Additionally, the ALJ discounted Mr. Elliott's opinion that Plaintiff has extreme limitations
in concentration, persistence and pace and social functioning because those findings also are not
supported by objective findings in the record. The ALJ specifically discussed that extreme
limitations in any two categories of the "paragraph B" criteria is incompatible with an ability to
perform any gainful activity whatsoever. Tr. 35. The ALJ specifically reasoned that Mr. Elliott's
assessed limitations are unde1mined by Plaintiffs ability to go to college part-time and earn a 3.0
GP A and continued part-time employment. The ALJ findings are wholly supported by substantial
evidence in the record. Accordingly, the ALJ has provided multiple germane reasons for discounting
Mr. Elliott's opinion; the ALJ did not err. lvfolina, 674 F.3d at 1111-12.
Plaintiff argues that the ALJ failed to provide germane reasons for discounting Ms. Nause's
opinion. Ms. Nause appears to be counselor with vocational rehabilitation services. Ms. Nause
provided an opinion dated December 9, 2011, in which she states that Plaintiff has held 24 jobs as
a location manager forthe film industry, each job lasting less than three months in duration. Tr. 684.
Ms. Nause opined that Plaintiffs difficulty interacting in a socially acceptable manner, lack of
stamina, and difficulties with anxiety, reading, math, and depression make it difficult for her to
obtain employment. Tr. 683-84. In the decision, the ALJ discussed Ms. Nause's opinion and gave
22 - OPINION AND ORDER
Plaintiff appears to contend that the ALJ failed to incorporate Ms. Joyce's assessment that
Plaintiff has moderate limitations in social functioning. Ms. Joyce provided counseling to Plaintiff
beginning in September 2013 on a weekly basis. Tr. 1010. In an April 4, 2014 opinion, Ms. Joyce
diagnosed Plaintiff with PTSD, complex, and major depressive disorder, moderate, recu!1'ent. Tr.
1010. Ms. Joyce discussed that Plaintiff endorses a cycle of complaint and conflict, and that she has
made little progress in changing this pattern. Tr. 1012. Ms. Joyce opined that Plaintiffs symptoms
could be expected to last for at least 12 months, that her psychiatric condition exacerbates Plaintiffs
pain, and that Plaintiff would miss three days of work each month. Tr. 1114-15. Ms. Joyce also
opined that Plaintiff suffers marked limitations in activities of daily living, moderate limitations in
social functioning, often experiences deficiencies in concentration, persistence, and pace, and has
suffered repeated episodes of decompensation. Tr. 1017.
In the decision, the ALJ provided several germane reasons for giving Ms. Joyce's opinion
"no weight." First, as the ALJ discussed, there simply is no objective record supp mt for Ms. Joyce's
opinion that Plaintiff has suffered repeated episodes of decompensation. As discussed above,
Plaintiff has identified no record support for this contention. Second, as the ALJ accurately
discussed, the record belies Ms. Joyce's opinion that Plaintiff suffers marked limitations in her
activities of daily living. Tr. 36. As the ALJ indicated, Plaintiff is able to regularly attend school
and attends to all her daily needs independently. Tr. 64, 68, 227-28, 899-900. Third, as the ALJ
co!1'ectly indicated, many of Ms. Joyce's responses in her opinion are premised on Plaintiffs
discredited subjective rep01ts. Tr. 1014. The ALJ's findings are wholly suppo1ted by substantial
24 - OPINION AND ORDER
evidence and readily provides multiple germane reasons for discounting Ms. Joyce's opinion.
lYiolina, 674 F.3d at 1111-12.
The ALJ Did Not Err in Finding that Plaintiff Does Not Meet Listing 12.04
To meet Listing 12.04, Plaintiffs impairments must meet or equal both parts A and B, or
parts A and C of the listing criteria. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04. In order to meet
or equal the "paragraph B" criteria, a claimant demonstrate at least two of the following: marked
activities of daily living; marked difficulties in maintaining social functioning; marked difficulties
maintaining concentration, persistence or pace; or repeated episodes of decompensation, each of
extended duration. Id.
Substantial evidence supports the ALJ' s findings that Plaintiff has mild
restriction in her activities of daily living, moderate difficulties with social functioning and
concentration, persistence and pace, and has experienced no episodes of decompensation. Tr. 29-30.
Plaintiff contends that the ALJ e11"ed in failing to find that she meets Listing 12.04. Plaintiff
argues that she meets the paragraph B criteria relying on the opinions of Mr. Elliott and Ms. Joyce.
Ms. Joyce and Mr. Elliott opined that Plaintiff has marked restrictions in her activities of daily living
and that she has suffered repeated episodes decompensation. As discussed above, the ALJ validly
discounted the opinions of Mr. Elliott and Ms. Joyce because there is no objective record support
for their opinions that Plaintiff has suffered any episodes of decompensation. Additionally, their
opinions that Plaintiff has marked restrictions in activities of daily living is belied by Plaintiffs
numerous self-reports that she is independent with all self-care. Tr. 64, 68, 227-28, 899-900.
Having examined the ALJ' s analysis at step three, I readily conclude the ALJ did not err in finding
that Plaintiff does not meet Listing 12.04. The ALJ' s step three findings are supp01ied by substantial
evidence and free oflegal e1TOr.
25 - OPINION AND ORDER
RFC and Hypothetical to the Vocational Expe1i
Plaintiff argues that the RFC fails to account for all of her concentration limitations, and that
the ALJ erred by failing to perform a function-by-function analysis as required by Social Security
Ruling 96-Sp. I disagree.
Plaintiff essentially repeats her contention that the ALJ enoneously evaluated the medical
evidence. The ALJ did not eirnneously omit restrictions from Plaintiffs RFC relating to her
concentration and social judgment because the RFC limits her to simple, repetitive routine tasks with
occasional contact with the general public. See Stubbs-Danielson, 539 F.3d at 1176 (approving a
similar RFC finding in similar circumstances). As discussed at length above, the ALJ did not eiT in
evaluating Plaintiffs credibility or in assessing the medical evidence. Here, the RFC appropriately
includes those limitations credited by the ALJ, are supported by substantial evidence, and that did
not rely on Plaintiffs subjective complaints.
Bayliss, 427 F.3d at 1217.
function-by-function analysis for medical conditions or impairments that the ALJ found neither
credible nor supported by the record is unnecessaiy." Id. Moreover, the hypothetical posed to the
VE contained all of the limitations the ALJ found credible and suppo1ied by substantial evidence in
the record. Id. Accordingly, the ALJ' s finding that Plaintiff could perfo1m jobs that exist in
substantial numbers in the national economy was supported by substantial evidence and free of
reversible legal error.
26 - OPINION AND ORDER
For the reasons set fo1ih above, the Commissioner's final decision denying benefits to
Plaintiff is AFFIRMED.
IT IS SO ORDERED.
DATED this_3_ day of APRIL, 2017.
Malcolm F. Marsh
United States District Judge
27 - OPINION AND ORDER
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