Sweeney v. Commissioner Social Security Administration

Filing 20

OPINION AND ORDER: The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Opinion and Order. Signed on 10/17/2017 by Judge Anna J. Brown. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LISA SWEENEY,
Plaintiff,

3:16-cv-01802-BR
OPINION AND ORDER

v.
NANCY A. BERRYHILL,1
Acting Commissioner, Social
Security Administration,
Defendant.

MERRILL SCHNEIDER
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, OR 97293
[phone]
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
[phone]
1

On January 23, 2017, Nancy A. Berryhill was appointed the
Acting Commissioner of the Social Security Administration and
pursuant to Federal Rule of Civil Procedure 25(d) is substituted
as Defendant in this action.
1 - OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
MARTHA A. BODEN
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104-7075
[phone]
Attorneys for Defendant

BROWN, Judge.
Plaintiff Lisa Sweeney seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff’s applications
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 REVERSES the decision
of the Commissioner and REMANDS this matter pursuant to sentence
four of 42 U.S.C. § 405(g) for further proceedings consistent
with this Opinion and Order.

ADMINISTRATIVE HISTORY
Plaintiff protectively filed her application for SSI on
June 18, 2012.

Tr. 281.2

date of August 4, 1999.

2

Plaintiff alleged a disability onset
Tr. 281.

Plaintiff’s applications were

Citations to the official transcript of record filed by
the Commissioner on March 28, 2017, are referred to as “Tr.”
2 - OPINION AND ORDER

denied initially and on reconsideration.

An Administrative Law

Judge (ALJ) held a hearing on July 23, 2014, and a supplemental
hearing on October 28, 2014.

Tr. 42-70, 71-88.

Plaintiff, an

independent medical expert, and a vocational expert (VE)
testified.

Plaintiff was represented by an attorney at the

hearings.
On January 30, 2015, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 21-36.

On July 11, 2016, the Appeals Council

denied Plaintiff’s request to review the ALJ’s decision, and the
ALJ’s decision became the final decision of the Commissioner.
Tr. 1-3.

See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On September 13, 2016, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner’s decision.

BACKGROUND
Plaintiff was born on May 6, 1969.

Tr. 183, 191.

Plaintiff

was 45 years old at the time of the hearings.

Plaintiff has a

high-school equivalency degree.

The ALJ found

Tr. 80, 319.

Plaintiff does not have any past relevant work experience.
Tr. 35, 65.
Plaintiff alleges disability due to herniated discs in her
back, “severe sleep apnea,” bipolar disorder, congenital adrenal
hyperplasia, “severe” restless leg syndrome, arthritis, and high

3 - OPINION AND ORDER

cholesterol.

Tr. 318.

Except as noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

See Tr. 23-35.

After carefully

reviewing the medical records, this Court adopts the ALJ’s
summary of the medical evidence.

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).
4 - OPINION AND ORDER

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.

Id. (citing Valentine, 574 F.3d

at 690).
The ALJ is responsible for evaluating a claimant’s
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
Cir. 2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th

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
I.

The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commis-

sioner determines the claimant is engaged in substantial
5 - OPINION AND ORDER

gainful activity (SGA).

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
impairment 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
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.

6 - OPINION AND ORDER

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
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 June 18, 2012, the application
date.

Tr. 23.
At Step Two the ALJ found Plaintiff has the severe

7 - OPINION AND ORDER

impairments of obesity; degenerative disc disease affecting the
lumbar spine; mild degenerative joint disease; right trochanter
bursitis; and mental disorders “variously described as bipolar,
post-traumatic stress disorder (“PTSD”), and history of alcohol
dependence.”

Tr. 23-25.

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.

The ALJ found Plaintiff has the RFC to

perform light work except that Plaintiff can lift, carry, push,
and pull 20 pounds occasionally and 10 pounds frequently; sit
four hours at one time and up to a total of six hours in an
eight-hour workday; stand and walk two hours at one time and up
to a total of four hours in an eight-hour workday; occasionally
climb ramps and stairs; never climb ladders, ropes, or scaffolds;
occasionally stoop, kneel, crouch, and crawl; occasionally be
exposed to extreme cold and vibration; and never work around
hazards such as unprotected heights or moving mechanical parts.
The ALJ found Plaintiff does not have any limitations in
understanding or memory; has sufficient concentration,
persistence, and pace to complete simple, routine tasks for a
normal workday and workweek; should have only brief interactions
with the general public and coworkers; and can accept
supervision.

Tr. 27-35.

8 - OPINION AND ORDER

At Step Four the ALJ concluded Plaintiff has not performed
any past relevant work.

Tr. 35.

At Step Five, however, the ALJ concluded Plaintiff can
perform other work that exists in significant numbers in the
national economy including as a laundry folder, a price marker,
and a silver wrapper.

Tr. 35-36.

Plaintiff is not disabled.

Accordingly, the ALJ found

Tr. 36.

DISCUSSION
Plaintiff contends the ALJ erred when she:
(1) Found the following conditions were not severe medically
determinable impairments at Step Two:

arthritis, ulnar

collateral ligament injury in Plaintiff’s left hand, left
shoulder acromioclavicular joint spurring, cervical-spine
degeneration, congenital adrenal hyperplasia with salt washing,
sleep apnea, and “multiple degenerating uterine leiomyomata”;
(2) Failed to find Plaintiff disabled at Step Three under
Listing 1.04A as a result of her back impairments;
(3) Discredited Plaintiff’s testimony;
(4) Discredited the medical opinions of Douglas Eubanks,
D.O. (Plaintiff’s treating physician); Curtis Hill, M.D.
(Plaintiff’s treating neurosurgeon); and the nonexamining opinion
of Megan D. Nicoloff, Psy.D., and Kardell N. Kennemer, Psy.D.;
and

9 - OPINION AND ORDER

(5) Failed to assess the lay-witness testimony of Sherry
Sweeney, Plaintiff’s partner.
I.

Step Two
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.

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 v. Comm’r of Soc. Sec. Admin.,
648 F.3d 721, 724 (9th Cir. 2011).

A severe impairment

“significantly limits” a claimant’s “physical or mental ability
to do basic work activities.”

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 supervision, 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).
10 - OPINION AND ORDER

The Ninth Circuit has held when the ALJ has resolved Step Two in
a claimant’s favor, any error in designating a specific
impairment as severe at Step Two is harmless if the ALJ,
nonetheless, accounted for the limitations imposed by that
condition in his assessment of the claimant’s RFC.

See Lewis v.

Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
In her opening brief Plaintiff identifies several conditions
that she contends the ALJ erroneously concluded are not severe
impairments at Step Two:
Substantial medical evidence of record shows that the
claimant has been diagnosed with, suffers serious
symptoms from, and has been treated for the following
additional severe impairments: arthritis of multiple
joints, including right hip and fingers, with
associated pain and limited range of motion (Tr. 667,
677, 727, 753, 1108, 1223); ulnar collateral ligament
tear of the left hand (Tr. 846); degenerative spurring
of the AC joint in the left shoulder, with pain,
decreased range of motion, decreased strength in
extremity, and tender to palpation (Tr. 789, 888, 894);
degenerative changes of the cervical spine, with neck
pain, decreased sensation, and limited range of motion
(Tr. 888, 894, 901, 1023-1024, 1028-1029, 1185);
congenital adrenal disease/salt-wasting CAH (Tr. 419,
1247); sleep apnea (Tr. 802); and multiple degenerating
uterine leiomyomata (Tr. 1169).
Pl.’s Mem. in Support (#15) at 13.

Plaintiff repeats this

lengthy sentence in her Reply Memorandum (#19), but she does not
at any time provide a specific argument as to why each listed
condition meets the Step Two standard.

Instead Plaintiff merely

lists each of the conditions together with references to page
numbers in the record that Plaintiff apparently contends support

11 - OPINION AND ORDER

her unelucidated claim that the ALJ erred when she did not find
each of those impairments to be severe.
This Court, sitting in an appellate capacity, cannot
consider arguments “‘that are not specifically and distinctly
argued in an appellant’s opening brief.’”

Carmickle v. Comm’r

Soc. Sec. Admin., 553 F.3d 1155, 1161 n.2 (9th Cir. 2008)(quoting
Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164
(9th Cir. 2003)).

Because Plaintiff has failed to provide any

substantive argument in support of her various Step Two claims,
the Court may only speculate as to Plaintiff’s contentions based
solely on citations to pages in the record.

Plaintiff,

therefore, falls short of “specifically and distinctly”
presenting these arguments to this Court.

See Carmickle, 553

F.3d at 1161 n.2.
Accordingly, on this record the Court will not consider
Plaintiff’s Step Two arguments.
II.

Step Three
At Step Three the Commissioner must determine whether a

claimant’s impairments meet or equal one of the listed
impairments and are so severe that they preclude substantial
gainful activity.

20 C.F.R. § 416.920(a)(4)(iii).

As noted, Plaintiff contends her back conditions meet
Listing 1.04A, and, therefore, the ALJ erred when she did not
find Plaintiff disabled at Step Three.
12 - OPINION AND ORDER

In order to be found

disabled at Step Three under Listing 1.04, Plaintiff’s back
conditions must meet the following criteria:
Disorders of the spine (e.g., herniated nucleus
pulposus, spinal arachnoiditis, spinal stenosis,
osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina) or the
spinal cord. With:
Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg
raising test (sitting and supine);
20 C.F.R. pt. 404, subpt. P, app. 1.
Plaintiff contends the following evidence establishes the
criteria of Listing 1.04A are met:
Ms. Sweeney asserts that she does meet Listing 1.04A,
as the medical record establishes that she has nerve
root compression, as established by MRI and diagnosis
(Tr. 1242-1244, 1300), with: (1) neuroanatomic
distribution of pain, with radiating pain to the right
leg (Tr. 887, 1299-1300); (2) limitation of motion of
the spine, established through physical examination
(Tr. 858, 864, 867, 872, 877, 880, 883, 886, 1300);
(3) motor loss accompanied by sensory or reflex loss,
as evidenced by treatment notes showing 1/5 strength in
her right leg, “unable to move her leg forward due to
pain,” difficulty raising right leg, and reflexes 0-1
(Tr. 941, 960, 1300); and (4) positive straight-leg
raising test, established through physical examination
(Tr. 904, 1299-1300).
Pl.’s Mem. in Support (#15) at 14.

Listing 1.04A is the only

subsection applicable to Plaintiff’s contention that the ALJ
erred at Step Three when she found that Plaintiff is not disabled
at that step.

The ALJ found Plaintiff did not meet Listing 1.04

13 - OPINION AND ORDER

because “the medical evidence does not show the required
objective signs of neuroanatomical distribution of pain, spinal
arachnoiditis, or lumbar spinal stenosis resulting in
pseudoclaudication.”

Tr. 25.

The ALJ relied on the testimony of nonexamining medical
expert Eric Schmitter, M.D., who testified at the October 28,
2014, hearing that Plaintiff “does not meet or equal a listing
because she has no neurological components to the objective
findings in the record that was provided to me.”

Tr. 51.

At

that hearing Dr. Schmitter reviewed several exhibits with the ALJ
and Plaintiff’s counsel and explained his opinion that there were
not any objective findings of neurological components to
Plaintiff’s back pain to establish at Step Three that Plaintiff
is disabled.

Tr. 54-56.

After the hearing the ALJ sent

additional medical records to Dr. Schmitter together with a
Medical Interrogatory in which the ALJ asked Dr. Schmitter
several additional questions.

Tr. 1304-05.

Dr. Schmitter

indicated the additional medical records did not change his
opinion that he provided at the hearing and that there still was
“never any documented neuropathy.”

Tr. 1304-05.

Plaintiff has not pointed to any evidence that directly
contradicts Dr. Schmitter’s findings or that establishes the ALJ
erred when she relied on Dr. Schmitter’s opinion.

Accordingly,

the Court concludes Dr. Schmitter’s opinion constitutes

14 - OPINION AND ORDER

substantial evidence to support the ALJ’s finding that
Plaintiff’s back conditions do not meet the criteria of Listing
1.04A.
On this record, therefore, the Court concludes the ALJ did
not err at Step Three.
III. Plaintiff’s Testimony
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.
Cir. 1986).

Cotton, 799 F.2d 1403, 1407 (9th

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

15 - OPINION AND ORDER

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 July 23, 2014, hearing, Plaintiff testified her
previous employment ended because “of the pain [she] was in” and
because her employer repeatedly sent her home as a result of that
pain.

Tr. 81.

Although Plaintiff previously had back surgery,

she testified her back pain “now is just like it was before [she]
had surgery.”

Tr. 87.

Plaintiff stated her medications affect

her ability to concentrate and cause her to “fall asleep several
times throughout the day.”

Tr. 81.

Plaintiff testified she does

not do any household chores, but she likes to swim, to read, and
to sew although she cannot sew any longer as a result of the
arthritis in her hands.

Tr. 86.

Plaintiff testified she

“[o]ccasionally” drinks alcohol, which she defined as “I will
have like a couple beers maybe once or twice a month.
with my pizza.”

I like it

Tr. 82.

In her August 7, 2012, Adult Function Report, Plaintiff
reported she uses a cane to get around the house, that it takes
her 45 minutes to dress in the morning, and that she is unable to
bend down to pick up clothes.

Tr. 341.

Plaintiff stated she

uses her cane to walk outside and that she uses a scooter when
she goes to the store.

16 - OPINION AND ORDER

Tr. 341.

Plaintiff reported her pain

makes it difficult to sleep.

Tr. 341.

Plaintiff indicated she

vacuums and does dishes and laundry around the house with the
assistance of her cane, but she does not do any chores outside.
Tr. 343.

Plaintiff stated she does not go anywhere other than

the pharmacy, grocery store, work, and the bank.

Tr. 344.

Plaintiff indicated her conditions affect her abilities to
lift, to squat, to bend, to stand, to reach, to walk, to sit, to
kneel, to climb stairs, to remember, to complete tasks, to
concentrate, and to use her hands.

Tr. 345.

Plaintiff stated

she can only walk for 10 or 12 feet before requiring 5 or 10
minutes of rest.

Tr. 345.

Plaintiff reported she can pay

attention for 20 to 30 minutes, follows written and spoken
instructions well, and gets along with authority figures, but she
does not handle stress or changes in routine well.

Tr. 345-46.

Plaintiff stated she ambulates with a cane that was prescribed in
2003 and uses scooters when they are available in the store.
Tr. 346.
The ALJ discredited Plaintiff’s testimony because
(1) Plaintiff’s testimony was inconsistent with the medical
record and she exaggerated her symptoms, (2) Plaintiff’s failure
to seek treatment from specialists indicated her conditions were
not as severe as alleged, (3) Plaintiff’s testimony was
inconsistent with that of the medical expert, (4) Plaintiff’s
pain was controlled by medication, (5) Plaintiff’s reported

17 - OPINION AND ORDER

activities of daily living were inconsistent with those reported
throughout the record, and (6) Plaintiff’s sporadic prior work
history suggests Plaintiff lacks the motivation to work.
The ALJ identified several inconsistencies between
Plaintiff’s testimony and the medical record.

For example,

Dr. Hill noted Plaintiff “did well for two years or more” after
her 2011 lower-back surgery, which the ALJ found inconsistent
with Plaintiff’s alleged onset date of disability in 2009 as well
as her 2012 Adult Function Report in which she reported
significant limitations caused by her lower back.

Tr. 1299.

Moreover, as the ALJ noted, Plaintiff’s gait was routinely
described as “stable and fluid” by treatment providers throughout
2011, 2012, and 2013, which the ALJ reasonably found contradicted
Plaintiff’s Adult Function Report in which she stated she
regularly used a cane to ambulate and that the cane had been
prescribed as far back as 2003.

See, e.g., Tr. 836, 841, 848,

854, 857, 860, 863, 871, 876, 879, 890.
Moreover, the ALJ correctly noted Plaintiff misrepresented
the severity of her various conditions throughout the record.
For example, on December 18, 2013, Plaintiff told Kristin
Cummings, PMHNP, that her right hip “will be being replaced
soon,” but the findings in her September 28, 2013, MRI as to her
right hip showed that her condition was mild and none of her
medical providers indicated a hip replacement was necessary.

18 - OPINION AND ORDER

Tr. 565, 753.

Similarly, on March 14, 2013, Plaintiff told

Albert Rodriguez, P.A., that she had “severe” arthritis in her
cervical spine, but Plaintiff’s cervical-spine x-rays taken March
11, 2013, were “negative” and an August 12, 2013, CT scan of her
cervical spine revealed only a mild condition that was unchanged
from an MRI performed on March 19, 2013.

Tr. 750, 773, 869.

Moreover, the ALJ noted although Plaintiff described significant
limitations in her activities of daily living in her August 2012
Adult Function Report, she reported to FNP Kathleen Harris-Hobbs
on December 4, 2012, that her pain medication “allows her to
function with her ADL’s [sic].”

Tr. 860.

With respect to her mental health, Plaintiff indicated in
her Adult Function Report that she was “very good” at getting
along with authority figures and had never lost a job because of
problems getting along with others, but on May 23, 2014,
Plaintiff told QMHP Lindsay Miller that she would “‘yell at
people’ and would get fired.”

Tr. 345, 539.

Thus, the ALJ’s

finding that Plaintiff exaggerated her symptoms and made
allegations inconsistent with the medical record is amply
supported by the record.
The ALJ also reasoned Plaintiff’s failure to consistently
seek treatment by a specialist indicated her symptoms were not as
severe as alleged.

“[A]lthough a conservative course of

treatment can undermine allegations of debilitating pain, such

19 - OPINION AND ORDER

fact is not a proper basis for rejecting the claimant’s
credibility where the claimant has a good reason for not seeking
more aggressive treatment.”

Carmickle, 533 F.3d at 1162.

In

this case the ALJ’s reference to Plaintiff’s conservative course
of treatment is not persuasive.

As noted, Plaintiff underwent

lower-back surgery in 2011 and regularly saw her primary-care
providers for treatment and medication management after that
surgery.

Although her back pain was managed with medication for

an extended period, beginning in August 2013 Plaintiff’s
treatment providers frequently worked to obtain walkers and
scooters to assist with her ambulation and periodically referred
her to specialists.

See, e.g., Tr. 929, 938, 962, 978.

Moreover, Plaintiff returned to Dr. Hill, her orthopedic surgeon,
for an examination on November 6, 2014.

Tr. 1299-1303.

Accordingly, the record does not support the ALJ’s discrediting
of Plaintiff’s testimony on the basis that her medical treatment
was routine and conservative.
The ALJ also discredited Plaintiff’s testimony regarding her
back condition on the basis that the medical record indicated her
symptoms were controlled with medication.
partially supported by the record.

The ALJ’s finding is

Throughout 2012 and into 2013

the medical record contains numerous indications that Plaintiff’s
back pain was controlled by medication.

See, e.g., Tr. 844, 848,

854, 860-61, 864, 871-72, 876, 879-80, 883.

20 - OPINION AND ORDER

In summer 2013,

however, the medical evidence reflects a significant and sudden
change in Plaintiff’s symptoms that caused her gait to quickly
destabilize and her reports and treatment-providers’ findings of
back pain to worsen.
977-78.

See, e.g., 907-08, 929-30, 938-39, 962-63,

The Court notes there is not any clear explanation in

the record for this sudden change in Plaintiff’s symptoms and
limitations.

Accordingly, although the fact that Plaintiff’s

back pain was being controlled by medication was a clear and
convincing reason to discredit Plaintiff’s symptom testimony as
it relates to her functionality in 2012 and early 2013, it does
not support the ALJ’s findings as they relate to Plaintiff’s
condition after August 2013.
The ALJ also found Plaintiff’s testimony was not credible on
the basis that the activities of daily living that she reported
in her testimony and Adult Function Report differed from those
reflected in the medical record.

For example, the ALJ correctly

noted Plaintiff indicated in her August 2012 Adult Function
Report that she only cared for her daughter and, in fact,
required assistance with many of her own activities of daily
living.

On July 11, 2012, however, Plaintiff reported “[s]he

provides care for her partner including showers and toileting.”
Tr. 533.

In addition, the ALJ reasonably found Plaintiff’s

March 21, 2014, report that “she has been lifting weights” for
exercise was inconsistent with Plaintiff’s allegations of

21 - OPINION AND ORDER

significant physical limitations in her testimony at the hearing
and in her Adult Function Report.

Tr. 986.

Finally, the ALJ found Plaintiff’s sporadic work history
indicated she lacked the motivation to work and that her physical
and mental limitations were not the cause of her unemployment.
Although the ALJ is correct that Plaintiff lacks an extensive
work history, the Court finds this fact to be of minimal
importance when determining whether Plaintiff’s testimony is
credible.
Although not all of the ALJ’s reasons for discrediting
Plaintiff’s testimony were valid, the Court concludes the ALJ
provided clear and convincing reasons to discredit Plaintiff’s
testimony.

In particular, the Court finds the ALJ identified

enough examples of Plaintiff exaggerating symptoms or making
allegations that were inconsistent with the medical record to
cast doubt on the entirety of Plaintiff’s testimony and
subjective symptom reporting.
On this record, therefore, the Court concludes the ALJ did
not err when she discredited Plaintiff’s testimony because she
provided legally sufficient reasons for doing so.
IV.

Medical Testimony
As noted, Plaintiff contends the ALJ erred when she

discredited the medical opinions of Douglas Eubanks, D.O.
(Plaintiff’s treating physician); Curtis Hill, M.D. (Plaintiff’s

22 - OPINION AND ORDER

treating neurosurgeon); and the nonexamining opinion of Megan D.
Nicoloff, Psy.D., and Kardell N. Kennemer, Psy.D.
An ALJ may reject a treating physician’s opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes findings setting forth specific,
legitimate reasons for doing so that are supported by substantial
evidence in the record.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1232 (9th Cir. 2011).

When the medical opinion of

a treating physician is uncontroverted, however, the ALJ must
give “clear and convincing reasons” for rejecting it.

Turner v.

Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010)(quoting
Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995)).

The

opinion of a treating physician is “given greater weight than the
opinions of other physicians.”

Kelly v. Astrue, No. 10–36147,

2012 WL 767306, at *1 (9th Cir. 2012)(quoting Smolen v. Chater,
80 F.3d 1273, 1285 (9th Cir. 1996)).
A nonexamining physician is one who neither examines nor
treats the claimant.
Cir. 1995).

Lester v. Chater, 81 F.3d 821, 830 (9th

See also Garrison v. Colvin, No. 12-CV-15103, 2014

WL 3397218, at *13 (9th Cir. 2014).

“The opinion of a

nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician.”
at 1233 (quoting Lester, 81 F.3d at 831).
23 - OPINION AND ORDER

Taylor, 659 F.3d

When a nonexamining

physician’s opinion contradicts an examining physician’s opinion
and the ALJ gives greater weight to the nonexamining physician’s
opinion, the ALJ must articulate her reasons for doing so with
specific and legitimate reasons supported by substantial
evidence.

See, e.g., Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,

1198 (9th Cir. 2008).

A nonexamining physician’s opinion can

constitute substantial evidence if it is supported by other
evidence in the record.

Morgan v. Comm’r of Soc. Sec. Admin.,

169 F.3d 595, 600 (9th Cir. 1999).

See also Simpson v. Astrue,

No. 10-cv-06399-BR, 2012 WL 1340113, at *5 (D. Or. Apr. 18,
2012).
A.

Dr. Eubanks’s Opinion

Dr. Eubanks, one of Plaintiff’s primary-care physicians,
submitted a letter on December 17, 2014, and a worksheet on
January 9, 2015.

In the letter Dr. Eubanks stated Plaintiff

“suffers from multiple conditions that limit her mobility
including enthesopathy of the hip as well as degeneration of the
spine.”

Tr. 1310.

Dr. Eubanks opined Plaintiff’s “ability to

bend, stand, walk, or crawl for long periods is limited by these
conditions.”

Tr. 1310.

On the worksheet Dr. Eubanks reported Plaintiff’s symptoms
were “chronic pain, paresthesia, and muscle weakness.”

Tr. 1312.

Dr. Eubanks indicated Plaintiff cannot lift or carry any weight,
can stand and/or walk for 30 minutes at a time but for no more

24 - OPINION AND ORDER

than one hour in an eight-hour workday, and can sit for one or
two hours at a time but no more than two hours in an eight-hour
workday.

Tr. 1312.

Dr. Eubanks indicated Plaintiff cannot

climb, balance, stoop, bend, kneel, crouch, crawl, or reach
overhead; can occasionally reach and handle; and can frequently
feel and engage in fine manipulation.

Tr. 1313.

Dr. Eubanks

indicated Plaintiff experiences nausea, fatigue, dizziness, and
short-term memory impairment as side effects of her medications,
which impair her ability to sustain attention and concentration
sufficient to perform even simple work tasks.

Tr. 1313.

Dr. Eubanks estimated Plaintiff would have impaired attention and
concentration 20% of the time and that she would miss more than
16 hours of work per month as a result of her conditions.
Tr. 1313-14.
The ALJ discredited Dr. Eubanks’s opinion because
(1) Dr. Eubanks did not have any contact with Plaintiff between
2011 and 2014; (2) his opinion was inconsistent with that of
Dr. Schmitter, the nonexamining medical expert that testified at
the hearing; and (3) Dr. Eubanks’s opinion was inconsistent
with the medical record and Plaintiff’s own reporting.

Although

the inconsistency between Dr. Eubanks’s opinion and the opinion
of Dr. Schmitter is not a sufficient reason to discredit
Dr. Eubanks’s opinion, it means, nonetheless, that the ALJ is
only required to provide specific and legitimate reasons to

25 - OPINION AND ORDER

discredit Dr. Eubanks’s opinion.

See Ryan, 528 F.3d at 1198.

The ALJ was correct that Dr. Eubanks did not have a
significant treatment relationship with Plaintiff.
treated Plaintiff on only one occasion:
Tr. 929-30.

Dr. Eubanks

October 16, 2013.

The ALJ, therefore, reasonably discredited

Dr. Eubanks’s opinion on the basis that he did not have a
significant treatment relationship with Plaintiff.
The ALJ also discredited Dr. Eubanks’s opinion on the basis
that it was inconsistent with the medical record and Plaintiff’s
testimony.

As the ALJ noted, Dr. Eubanks’s opinion that

Plaintiff could not lift or carry any weight is not consistent
with Plaintiff’s reports that she is capable of attending to her
activities of daily living, caring for family members, and even
lifting weights for exercise.

See, e.g., Tr. 986, 1001.

Moreover, the ALJ reasonably found Dr. Eubanks’s opinion that
Plaintiff would exhibit substantially impaired attention and
concentration were inconsistent with mental-status examinations
that did not identify any deficit in attention and concentration.
See, e.g., Tr. 531, 546-47, 551-52, 557-58.
On this record, therefore, the Court concludes the ALJ did
not err when she discredited Dr. Eubanks’s opinion because she
provided legally sufficient reasons for doing so.
B.

Dr. Hill’s Opinion

26 - OPINION AND ORDER

Dr. Hill, Plaintiff’s treating neurosurgeon, performed
Plaintiff’s back surgery in July 2011 and again treated Plaintiff
in 2014.

After the 2014 visit Dr. Hill completed a Neurological

History and Physical Examination that he sent by letter to
FNP Danielle Blackwell one of Plaintiff’s primary-care providers.
In that letter Dr. Hill described Plaintiff’s conditions and
indicated an MRI revealed Plaintiff has “multiple level[s] of
foraminal stenosis” in the lumbar spine.

Tr. 1299.

Dr. Hill

briefly described his physical examination of Plaintiff and
determined it would be useful for another physician to conduct a
“diagnostic nerve root block” to address Plaintiff’s low-back
symptoms.

Tr. 1300.

The ALJ did not specifically comment on Dr. Hill’s letter.
Plaintiff contends the ALJ’s failure to comment on the letter was
error.

The Court disagrees.

Dr. Hill’s letter to FNP Blackwell

does not constitute testimony submitted to the Commissioner as an
outline of the claimant’s medical diagnoses and functional
limitations.

Instead Dr. Hill’s letter is merely correspondence

between medical providers in which Dr. Hill, as a specialist,
discusses his examination of Plaintiff and treatment options.

In

that respect it is indistinguishable from a routine chart note
for purposes of evaluating Plaintiff’s disability.

The ALJ need

not comment on every piece of evidence in the record.
v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).

27 - OPINION AND ORDER

See Howard

See also

Bostwick v. Berryhill, 677 F. App’x 344, 345 (9th Cir. 2017).
Moreover, there is not anything in Dr. Hill’s letter to
FNP Blackwell that would require the ALJ to comment on it
separately from the remainder of the medical record.
Accordingly, on this record the Court concludes the ALJ did
not err when she did not comment specifically on Dr. Hill’s
letter to FNP Blackwell.
C.

Opinion of Drs. Nicoloff and Kennemer

Finally, Plaintiff contends the ALJ erred when she did not
fully include the limitations identified by Drs. Nicoloff and
Kennemer in her assessment of Plaintiff’s RFC.

Drs. Nicoloff and

Kennemer, both nonexamining psychologists, opined Plaintiff’s
“use of narcotic pain med[ication], mood [disorder,] and PTSD
[symptoms] would preclude performing detailed/complex tasks on a
regular basis.

While she could perform them once in awhile [sic]

she is not limited in her ability to perform simple, repetitive,
routine tasks of 1-2 steps as evidenced by her ability to drive,
do [household] chores, read and handle all finances including
shopping.”

Tr. 150-51, 164-65.

The ALJ gave the opinion of Drs. Nicoloff and Kennemer
“significant weight.”

Tr. 34.

In her assessment of Plaintiff’s

RFC, however, the ALJ limited Plaintiff to “simple, routine
tasks.”

Tr. 27.

Plaintiff, therefore, contends the ALJ did not

adequately incorporate the opinion of Drs. Nicoloff and Kennemer

28 - OPINION AND ORDER

into her assessment of Plaintiff’s RFC.
The Ninth Circuit has held a limitation to “simple, 1-2 step
work” is consistent only with jobs at Reasoning Level 1 and,
therefore, is not consistent with jobs at Reasoning Level 2
absent further explanation from the VE.

Rounds v. Comm’r Soc.

Sec. Admin., 795 F.3d 1177 (9th Cir. 2015).

The ALJ’s omission

of “1-2 step tasks” from her assessment of Plaintiff’s RFC,
therefore, was material and required the ALJ to explain why
she discredited the “1-2 step” portion of the opinion of
Drs. Nicoloff and Kennemer.

Accordingly, the ALJ failed to

adequately account for the opinion of Drs. Nicoloff and Kennemer
in the RFC assessment.

Moreover, this error was not harmless

because each of the jobs that the VE identified and the ALJ
relied on at Step Five require Reasoning Level 2.

See Dictionary

of Occupational Titles §§ 209.587-034 (price marker), 318.667-018
(silver wrapper), 369.687-018 (laundry folder).
On this record, therefore, the Court concludes the ALJ erred
when she failed to fully incorporate the opinion of Drs. Nicoloff
and Kennemer into her assessment of Plaintiff’s RFC or to provide
legally sufficient reasons for partially discrediting their
opinion.
V.

Lay-Witness Testimony
As noted, Plaintiff contends the ALJ erred when she failed

to address the lay-witness testimony of Sherry Sweeney,

29 - OPINION AND ORDER

Plaintiff’s partner.
Lay-witness testimony regarding a claimant’s symptoms is
competent evidence that the ALJ must consider unless he
“expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so.”
236 F.3d 503, 511 (9th Cir. 2001).

Lewis v. Apfel,

The ALJ’s reasons for

rejecting lay-witness testimony must also be “specific.”

Stout

v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1054 (9th
Cir. 2006).

Nevertheless, an ALJ is not required to address each

lay-witness statement or testimony on an “individualized,
witness-by-witness basis.

Rather if 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.”

Molina v. Astrue, 674 F.3d 1104, 1114 (9th

Cir. 2012)(quotation omitted).

Germane reasons for discrediting

a witness’s testimony include inconsistency with the medical
evidence and the fact that the testimony “generally repeat[s]”
the properly discredited testimony of a claimant.
Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).

Bayliss v.

See also Williams

v. Astrue, 493 Fed. App’x 866 (9th Cir. 2012).
Sherry Sweeney submitted a letter dated April 6, 2014, in
which she stated she had lived with Plaintiff for the last nine
months and helped her with daily chores, showering, and getting
dressed.

Tr. 379.

Sherry Sweeney stated she cooks for Plaintiff

30 - OPINION AND ORDER

every other day and drives Plaintiff to all doctor appointments
and to the grocery store.

Tr. 379.

Sherry Sweeney reported

Plaintiff is able to stand long enough to put dishes in the
dishwasher, but she must lay down immediately thereafter.
Tr. 379.
The ALJ did not address Sherry Sweeney’s testimony.

An

ALJ’s failure to address lay-witness testimony is harmless error,
however, when the same reasons that the ALJ relied on to
discredit the claimant’s testimony also discredit the lay-witness
testimony.

See Molina, 674 F.3d at 1122.

Here, however, the

majority of reasons that the ALJ properly provided for
discrediting Plaintiff’s testimony were personal to Plaintiff and
do not apply to Sherry Sweeney’s testimony.
Accordingly, on this record the Court concludes the ALJ
erred when she failed to address the lay-witness testimony of
Sherry Sweeney.
VI.

Remand
The decision whether to remand for further proceedings or

for immediate payment of benefits is within the discretion of the
court.

Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000).

issue turns on the utility of further proceedings.

The

A remand for

an award of benefits is appropriate when no useful purpose would
be served by further administrative proceedings or when the
record has been fully developed and the evidence is insufficient

31 - OPINION AND ORDER

to support the Commissioner’s decision.

Strauss v. Comm’r, 635

F.3d 1135, 1138-39 (9th Cir. 2011)(quoting Benecke v. Barnhart,
379 F.3d 587, 593 (9th Cir. 2004)).

The court may not award

benefits punitively and must conduct a “credit-as-true” analysis
to determine whether a claimant is disabled under the Act.

Id.

at 1138.
Under the “credit-as-true” doctrine, evidence should be
credited and an immediate award of benefits directed when:
(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such evidence, (2) there are not
any outstanding issues that must be resolved before a
determination of disability can be made, and (3) it is
clear from the record that the ALJ would be required to
find the claimant disabled if such evidence were
credited.
Id.

The reviewing court should decline to credit testimony when

“outstanding issues” remain.
(9th Cir. 2010).

Luna v. Astrue, 623 F.3d 1032, 1035

When the reviewing court finds the elements of

the “credit-as-true” rule have been satisfied, however, the court
may only remand for further proceedings if “an evaluation of the
record as a whole creates serious doubt that the claimant is, in
fact, disabled.”

Garrison v. Colvin, 759 F.3d 995, 1021 (9th

Cir. 2014).
As noted, the Court concludes the ALJ erred when she failed
to properly account for the opinion of Drs. Nicoloff and Kennemer
and when she failed to address the lay-witness testimony of
Sherry Sweeney.

Further proceedings are necessary to permit the

32 - OPINION AND ORDER

ALJ to determine how the opinions of Drs. Nicoloff and Kennemer
and the testimony of Sherry Sweeney affect the ALJ’s assessment
of Plaintiff’s RFC and, ultimately, the ALJ’s determination as to
whether Plaintiff is disabled.

CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
42 U.S.C. § 405(g) for further proceedings consistent with this
Opinion and Order.
IT IS SO ORDERED.
DATED this 17th day of October, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

33 - OPINION AND ORDER