Byrd v. Commissioner Social Security Administration

Filing 16

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. IT IS SO ORDERED. See attached order for further details. Signed on 3/7/19 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JASMINE B.,1
Plaintiff,

3:18-cv-00862-BR
OPINION AND ORDER

v.
Commissioner, Social Security
Administration,
Defendant.
BRIAN SCOTT WAYSON
Cascadia Disability Law LLC
P.O. Box 12028
Portland, OR 97212
[phone]
Attorneys for Plaintiff

1

In the interest of privacy and pursuant to the
recommendation of the Judicial Conference of the United States,
this Opinion and Order uses only the first name and the initial
of the last name of the nongovernmental parties. The same
designation will be used to identify nongovernmental parties'
family members if named in this case.
1 - OPINION AND ORDER

BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
MICHAEL W. PILE
Acting Regional Chief Counsel
JOSEPH JOHN LANGKAMER
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Jasmine B. seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act.

This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
Plaintiff filed an application for SSI on June 4, 2014, and

2 - OPINION AND ORDER

alleged a disability onset date of June 16, 1992.

Tr. 184.2

application was denied initially and on reconsideration.

Her

An

Administrative Law Judge (ALJ) held a hearing on January 25,
2017.

Tr. 41-75.

At the hearing the ALJ amended Plaintiff’s

onset date to April 17, 2014.

Tr. 45.

Plaintiff and a

vocational expert (VE) testified at the hearing, and Plaintiff
was represented by an attorney.
On March 9, 2017, the ALJ issued an opinion in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 25-36.

On March 19, 2018, that decision became

the final decision of the Commissioner when the Appeals Council
denied Plaintiff's request for review.

Tr. 1-6.

See Sims v.

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

BACKGROUND
Plaintiff was born on June 16, 1992, and was 24 years old at
the time of the hearing.
education.

Tr. 51.

work experience.

Tr. 184.

Plaintiff has a high-school

Plaintiff does not have any past relevant

Tr. 69.

Plaintiff alleges disability due to an anxiety disorder with
panic attacks, borderline intellectual functioning, and
depression.

Tr. 27.

2

Citations to the official transcript of record filed by
the Commissioner on October 3, 2018, are referred to as "Tr."
3 - OPINION AND ORDER

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

After carefully reviewing the

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

See Tr. 17, 31-33.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden a claimant must demonstrate her

inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months."
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).

42

See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

“relevant evidence that a reasonable mind might accept as
4 - OPINION AND ORDER

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 determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

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

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the
meaning of the Act.
5 - OPINION AND ORDER

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

2007).

See also 20 C.F.R. § 416.920.

Each step is potentially

dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. § 416.920(b).

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(c).

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 a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity.
C.F.R. § 416.920(a)(4)(iii).

20

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.
§ 416.945(a).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

6 - OPINION AND ORDER

“A

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.

20 C.F.R. § 416.920(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
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.

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).

7 - OPINION AND ORDER

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since her April 17, 2014, amended
alleged onset date.

Tr. 27.

At Step Two the ALJ found Plaintiff has the severe
impairments of borderline intellectual functioning, depression,
and an “anxiety disorder with associated panic attacks.”

Tr. 27.

The ALJ found Plaintiff’s conditions of obesity and back pain are
nonsevere.

Tr. 27.

At Step Three the ALJ concluded Plaintiff's impairments do
not meet or equal the criteria for any Listed Impairment from 20
C.F.R. part 404, subpart P, appendix 1.

The ALJ found Plaintiff

has the RFC to perform “a full range of work at all exertional
levels” with the following limitations:

never interacting with

the general public or “perform[ing] any task that would require
team work”; never climbing ladders, ropes, or scaffolds or
working around unprotected heights or dangerous machinery; and
only occasionally interacting with coworkers “such as brief
conversations.”

Tr. 29.

The ALJ also found Plaintiff can

“understand, remember and carry out tasks or instructions
consistent with occupations with an SVP level of 1 to 2[;]
. . . make simple work related decisions[; and] only work in an
environment with few workplace changes.”

Tr. 29.

At Step Four the ALJ found Plaintiff does not have any past
8 - OPINION AND ORDER

relevant work.

Tr. 34.

At Step Five the ALJ found Plaintiff could perform jobs that
exist in significant numbers in the national economy.

Tr. 35.

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION
Plaintiff contends the ALJ erred when she (1) improperly
found Plaintiff’s impairments do not meet or equal Listing 12.05;
(2) improperly rejected Plaintiff’s testimony in part;
(3) improperly rejected the statement of lay witness Allenisha
B.; and (3) improperly partially rejected the opinion of
reviewing psychologist Bill Hennings, Ph.D.
I.

The ALJ did not err when she found Plaintiff’s impairments
do not meet or equal Listing 12.05(B).
Plaintiff contends the ALJ erred when she found at Step

Three that Plaintiff’s impairments do not meet or equal the
criteria of Listing 12.05(B).
To satisfy the criteria of Listing 12.05(B) a claimant must
establish she has:
1.

Significantly subaverage general intellectual
functioning evidenced by a or b:
a.

A full scale (or comparable) IQ score of
70 or below on an individually
administered standardized test of
general intelligence; or

b.

A full scale (or comparable) IQ score of
71-75 accompanied by a verbal or
performance IQ score (or comparable part

9 - OPINION AND ORDER

score) of 70 or below on an individually
administered standardized test of
general intelligence; and
2.

Significant deficits in adaptive functioning
currently manifested by extreme limitation of
one, or marked limitation of two, of the
following areas of mental functioning:
a.
b.

Interact with others (see 12.00E2); or

c.

Concentrate, persist, or maintain pace
(see 12.00E3); or

d.
3

Understand, remember, or apply
information (see 12.00E1); or

Adapt or manage oneself (see 12.00E4);
and

The evidence about your current intellectual
and adaptive functioning and about the
history of your disorder demonstrates or
supports the conclusion that the disorder
began prior to your attainment of age 22.

20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.05(B).
On September 24, 2014, Donna Wicher, Ph.D, P.C.,
administered the Wechsler Adult Intelligence Scale (WAIS) during
an intellectual assessment of Plaintiff.

Plaintiff received a

full-scale IQ score of 79 and a verbal comprehension score of 80,
which placed “her overall level of functioning at the upper end
of the Borderline Range of intellectual ability.”

Tr. 429.

Dr. Wicher noted Plaintiff “appeared to give up quickly on
challenging tasks.

As a consequence, her test results may

underestimate her actual abilities.”

Tr. 429.

Dr. Wicher also

noted “there were indications of sub-optimal effort and her
10 - OPINION AND ORDER

functioning may actually be in the Low Average range of
intellectual ability.”

Tr. 430.

Thus, the Court finds on this

record that Plaintiff has not established she has “significantly
subaverage general intellectual functioning” within the meaning
of Listing 12.05(B)(1).
In addition, the record does not reflect any medical
professional has stated Plaintiff has an extreme limitation of
one or marked limitation of two of the following areas of mental
functioning:
a.

Understand, remember, or apply information
(see 12.00E1); or

b.

Interact with others (see 12.00E2); or

c.

Concentrate, persist, or maintain pace (see
12.00E3); or

d.

Adapt or manage oneself.

20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.05(B)(2).

Dr. Wicher

opined Plaintiff had only mild-to-moderate limitations in all of
the § 12.05(B)(2) areas.

Tr. 430.

Similarly, Dr. Hennings,

reviewing psychologist, opined Plaintiff had only mild-tomoderate limitations in all of the § 12.05(B)(2) areas.

Tr. 81-

86.
Accordingly, on this record the Court concludes the ALJ did
not err when she found at Step Three that Plaintiff’s impairments
do not meet or equal the criteria of Listing 12.05(B).

11 - OPINION AND ORDER

II.

The ALJ did not err when she partially rejected Plaintiff’s
testimony.
Plaintiff alleges the ALJ erred by failing to provide clear

and convincing reasons for partially rejecting 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.

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

1986), aff'd in Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.
1991).

The claimant, however, need not produce objective medical

evidence of the actual symptoms or their severity.

Smolen, 80

F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if she provides clear and
convincing reasons for doing so.

Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)).

General assertions that the claimant's testimony is

not credible are insufficient.

Id.

The ALJ must identify "what

testimony is not credible and what evidence undermines the
claimant's complaints."

12 - OPINION AND ORDER

Id. (quoting Lester, 81 F.3d at 834).

At the hearing Plaintiff testified she cannot work due to
anxiety and panic attacks.

Plaintiff stated she began

experiencing severe anxiety in July 2014 after she had
gallbladder surgery.

Plaintiff testified she believed she

“passed away” during the surgery but the doctor advised her that
did not happen.

Nevertheless, Plaintiff “couldn’t breathe” and

she began to feel dizzy.

Tr. 62-63.

Plaintiff stated she is

unable to explain adequately what triggered her anxiety attacks.
She noted she feels anxious when she is around people or loud
noises or “[j]ust anything, really. . . .
Tr. 60.

I’m overwhelmed.”

Plaintiff stated she will have “a panic attack about any

little thing and then it will go into anxiety.

And my vision

will go in and out and my body, my knees will start to get numb
and then I will faint.”

Tr. 55.

Plaintiff testified she does

not faint “too often” because she does not “normally go outside”
and she does not have anxiety when she is inside her house.
Tr. 55.

Plaintiff stated the last time she fainted was a month

before the hearing.

Plaintiff testified:

I was walking my daughter out to the bus stop
where I used to live. And I don’t know what
happened but she asked me she – she yelled at me
and then I got up off the ground and then I ran
back to my house.
Tr. 55.

Plaintiff noted she had fainted from panic approximately

six or seven times in the two years before the hearing when she
was at the grocery store or checking the mailbox, but not when
13 - OPINION AND ORDER

she was at the doctor’s office or the hospital.

Plaintiff stated

she did not go to the doctor or hospital after these fainting
episodes because she “figure[s] . . . they’re just going to tell
me that it’s my anxiety.”

Tr. 69.

Plaintiff stated she flew to

Indiana in 2014,3 but she handled flying by getting drunk.
Tr. 61.

In Indiana she “missed out on a lot of things” because

she “kept having anxiety.”

Tr. 61.

room for three days “just in bed.”

She was in her grandmother’s
Tr. 61.

She could not get up

because she would get dizzy immediately so she did not go
downstairs or “on the trips.”

Tr. 61.

Plaintiff noted her doctor “really want[s]” her to go to
therapy and has advised her that she needs to be in therapy in
order to have a physician prescribe medication.

Tr. 57.

Plaintiff, however, stated she is “not open” to therapy because
whenever she tries therapy it makes her “so emotional.

Like I’m

ok when I go in and then when I come back out I’m a complete
wreck, like, emotionally.”

Tr. 57.

The ALJ found Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged
symptoms,” but Plaintiff’s testimony “concerning the intensity,
persistence and limiting effects of [her] symptoms [is] not
entirely consistent with the medical evidence and other evidence

3

Contemporaneous medical records indicate Plaintiff went to
Indiana in December 2015 for “the holidays.” Tr. 700.
14 - OPINION AND ORDER

in the record.”

Tr. 30.

The ALJ noted Dr. Wicher reported

Plaintiff’s level of functioning was at the upper end of the
borderline range of intellectual disability.

Dr. Wicher also

noted, however, that Plaintiff appeared to give up easily on
challenging tasks, and, therefore, her test scores might
underestimate her actual abilities.

Dr. Wicher also concluded

Plaintiff’s alleged difficulty leaving her home does not rise to
the level of agoraphobia.

Dr. Wicher assessed Plaintiff with, at

most, mild-to-moderate difficulties with activities of daily
living, social functioning, concentration, persistence, and pace.
The ALJ pointed out Plaintiff’s repeated refusal to undergo
therapy and noncompliance with various anxiety medications.

The

record reflects Plaintiff continued to request only Xanax to
treat her anxiety notwithstanding the fact that several medical
professionals refused to prescribe Xanax for Plaintiff long-term
because it would not ameliorate her condition or her symptoms
long-term.

In addition, several medical professionals declined

to grant Plaintiff’s request for a six-month to one-year excuse
from the JOBS program4 due to anxiety.

For example, in April

2015 treating physician Deborah Jane Murphy, M.D., noted
Plaintiff had stopped taking Effexor because she did not believe

4

The Jobs Opportunity and Basic Skills (JOBS) program is
Oregon’s employment and training program for low-income families
on Temporary Assistance for Needy Families. See https://
www.oregon.gov/dhs/assistance/CASH/Pages/jobs-program.aspx.
15 - OPINION AND ORDER

it was helping, Plaintiff did not want to take any medication
other than Xanax, and Plaintiff did not want to “do therapy”
because Plaintiff did not believe it helped her in the past.
Tr. 585.

Dr. Murphy advised Plaintiff that she did not believe

Plaintiff “will qualify for disability because you have not had
adequate treatment for the disease that you are seeking
disability for.”

Tr. 586.

In May 2015 Dr. Murphy noted

Plaintiff still did “not want to engage in counseling” and did
“not want to take any other daily medications.
Xanax on a regular basis.”

Tr. 599.

[Wants to] take

Dr. Murphy explained to

Plaintiff that benzodiazepines are “addictive, build a tolerance,
not a good long-term solution use on a daily basis for anxiety.”
Tr. 599.

After Dr. Murphy advised Plaintiff that she was not

going to prescribe Xanax, Plaintiff left while Dr. Murphy was
talking to another doctor.

Plaintiff did not return to treatment

with Dr. Murphy.
In August 2015 Plaintiff received care at Gresham Family
Medicine.

On August 26, 2015, Plaintiff was seen by Theresa

Brown, N.D.

Plaintiff advised Dr. Brown that “Xanax and

lorazepem have been only successful meds.”

Tr. 722.

Dr. Brown

provided Plaintiff with a 30-day work release from the JOBS
program due to anxiety.

On September 21, 2015, Plaintiff

requested a “note for her case manager to excuse her from the
JOBS program” for six months to a year due to anxiety.
16 - OPINION AND ORDER

Tr. 715.

Matthew Sbardella, N.P., refused Plaintiff’s request and noted:
It is unreasonable to give her an excuse note from
the JOBS program for any longer than [one month]
as there is no active treatment plan to manage her
anxiety. Discussed reevaluating her ability to
participate in the JOBS program each appointment
would be reasonable but she not [sic] expect an
excuse from the program for six months up to a
year.
Tr. 716.

On October 14, 2015, Sydney Pallesen, N.D., noted

Plaintiff had discontinued her anti-anxiety medication.
Dr. Pallesen noted he was “not comfortable initiating
benzodiazepine medications as requested.
counsling for anxiety management.”

Recommended pt pursue

Tr. 713.

On October 21,

2015, psychiatric mental-health nurse practitioner Karen McNulty
prescribed Plaintiff a 30-day supply of Xanax, but noted Xanax
was “of temporary limited use . . . not a good long term
solution.”

Tr. 710.

On November 4, 2015, Plaintiff requested

P.M.H.N.P. McNulty to provide her with a one-year leave
from the JOBS program and a refill of Xanax, both of which
P.M.H.N.P. McNulty declined to do.
On December 11, 2015, Plaintiff reported to Jennifer Lamar,
N.D., and requested a “bridge of Xanax, which she says has been
prescribed by her therapist in the past.”

Tr. 703.

Dr. Lamar

declined to prescribe Xanax and advised Plaintiff to discuss her
anxiety with her mental-health provider.

On December 18, 2015,

Plaintiff returned to Dr. Lamar “to discuss an excuse letter for
her jobs program.”

Tr. 700.

17 - OPINION AND ORDER

Plaintiff reported she was seeing a

counselor at Lifeworks, but she missed two appointments and, as a
result, was instructed to take two classes about coping skills
before she could be seen by the counselor.

Dr. Lamar refused to

provide Plaintiff with an excuse letter and discussed with her
the “need for mental health counseling [to be] on board.”
Tr. 701.

On January 13, 2016, Plaintiff reported to Dr. Lamar

that she was experiencing apathy and insomnia while taking
Celexa.

Tr. 698.

Dr. Lamar discontinued Celexa, initiated a

trial of Nortriptyline, and provided Plaintiff with a letter
excusing her from the JOBS program for one month while Plaintiff
adjusted to Nortriptyline.
On March 22, 2016, Tyler Boyer, Q.M.H.P., with Cascadia
Behavioral Healthcare, conducted an intake assessment of
Plaintiff in which she reported severe anxiety and dizziness.
Q.M.H.P. Boyer recommended Plaintiff undergo individual and group
counseling to help her build skills for coping with PTSD.
Plaintiff declined group counseling due to her anxiety.

On

April 21, 2016, Plaintiff was seen by Pari Mazhar, MSW, LCSW,
with Cascadia to outline a treatment plan.

On April 26, 2016,

Plaintiff was seen by Ralph Huerta, Q.M.H.P., with Cascadia.
Plaintiff told Q.M.H.P. Huerta that she “really need[s] to get
this JOBS waiver signed.”

Tr. 618.

Plaintiff reported “her

ongoing anxiety does not allow her to fulfill her JOBS obligation
and she needs to have a letter provided by either her PCP or her
18 - OPINION AND ORDER

mental health provider to substantiate this claim.”

Tr. 618.

Q.M.H.P. Huerta “informed [Plaintiff] of policies mandated by
Multnomah County which do not allow this [therapist] to dismiss
her responsibilities associated with her public assistance.

This

[therapist] worked with [Plaintiff’s] defensive responses to the
information provided . . ., and encouraged [Plaintiff] to have
her PCP make efforts to support her in this endeavor.”

Tr. 618.

Plaintiff was seen by counselors at Cascadia on April 27 and
May 5, 2016.
On May 17, 2016, Plaintiff was seen by Alberto Rodriguez,
P.A., and she requested he sign “TANF5 paperwork . . . to excuse
her from any job training and assist with income.”

Tr. 687.

P.A. Rodriguez gave Plaintiff a note for “1 month off all work
related stressors.”

Tr. 688.

P.A. Rodriguez advised Plaintiff

to continue treatment with her mental-health provider and noted
he would “re-evaluate [Plaintiff’s TANF paperwork] in one month.”
Tr. 688.
Plaintiff cancelled her therapy sessions with Cascadia on
June 2 and June 9, 2016, and did not show for her session
scheduled June 20, 2016.

5

TANF is Temporary Assistance for Needy Families. “The
TANF program, which is time-limited, assists families with
children when the parents or other responsible relatives cannot
provide for the family's basic needs.” https://www.hhs.gov/
answers/programs-for-families-and-children/what-is-tanf/index.
html.
19 - OPINION AND ORDER

On July 1, 2016, Plaintiff attended a therapy session with
Cascadia.
On August 10, 2016, Plaintiff was seen by Sydney Pallesen,
N.D.

Plaintiff requested Dr. Pallesen complete her JOBS form.

Plaintiff advised Dr. Pallesen that “her caseworker would like
her to have a letter to excuse her from jobs program duties.
Pt has completed this form every few months and case worker
recommends completing 6-12 months exemption for convenience.”
Tr. 683.

Plaintiff stated she was advised by Cascadia that it

does not complete JOBS forms.

Dr. Pallesen advised Plaintiff

that she would consult with Plaintiff’s mental-health provider at
Cascadia about a waiver from the JOBS program.
Plaintiff did not show for her therapy session with Cascadia
on August 24, 2016, and, in fact, the record does not reflect any
sessions at Cascadia after August 24, 2016.
On October 18, 2016, Plaintiff reported to the Adventist
Medical Center complaining of abdominal pain.

John Lee, M.D.,

examining physician, diagnosed Plaintiff with a right ovarian
cyst. Dr. Lee prescribed 12 tablets of Norco and 30 ibuprofen to
address her pain.

Tr. 765.

On October 24, 2016, Plaintiff reported to Dr. Pallesen
complaining of pain from an ovarian cyst.

Plaintiff advised

Dr. Pallesen that she had been diagnosed with an ovarian cyst at
Adventist Medical Center, she had used all of her Norco, and
20 - OPINION AND ORDER

ibuprofen was not controlling her pain.

Tr. 679.

Dr. Pallesen

advised Plaintiff that she did not have the chart notes or
imaging from Adventist and “discussed [with Plaintiff the] clinic
policy and need to see pathology warranting narcotic treatment.”
Tr. 680.

Dr. Pallesen sent a request to Adventist for their

notes and imaging.

Dr. Pallesen offered Plaintiff a Toradol

injection for pain while they waited for the information from
Adventist, but Plaintiff declined.

Dr. Pallesen noted she had a

[s]light concern with regard to the fact that
[Plaintiff’s] mother has a narcotic history/has
discussed selling narcotics in our clinic lobby.
At each office visit, [Plaintiff] has requested a
controlled substance, and is unwilling to try
alternatives to narcotic or benzodiazepine.
[Plaintiff] becomes increasingly agitated when
offered Toradol injection for pain and walks out
of clinic stating that she will “just go to the
[Emergency Department] again.” Declines pelvic
examination and further work up.
Tr. 680.

The record does not reflect any further visits to

Dr. Pallesen’s clinic.
On October 24, 2016, Plaintiff reported to the emergency
department of Adventist Medical Center complaining of pain from
an ovarian cyst.

An ultrasound revealed Plaintiff had a

“persistent large right ovarian cyst which has enlarged since 18
October.”

Tr. 749.

An emergency department physician prescribed

Tylenol/ibuprofen for “symptomatic relief” as well as 15 tablets
of Norco.

Tr. 749-50.

In summary, the record supports the ALJ’s findings that
21 - OPINION AND ORDER

Plaintiff repeatedly refused to undergo therapy, discontinued
various anxiety medications prescribed by treating and examining
medical professionals, and continued to request only Xanax to
treat her anxiety notwithstanding the fact that several medical
professionals refused to prescribe Xanax to Plaintiff long-term
because it would not ameliorate her condition or her symptoms
long-term.

The record also reflects several medical

professionals declined to grant Plaintiff’s request for a sixmonth to one-year excuse from the JOBS program on the grounds
that such a long excuse from the JOBS program was unwarranted.
The ALJ also found Plaintiff’s allegations were inconsistent
with her activities.

For example, although Plaintiff reported

she suffered severe anxiety whenever she left the house, the
record reflects Plaintiff flew to Indiana for the holidays in
December 2015.

Plaintiff testified at the hearing that she spent

the trip to Indiana in her room due to extreme anxiety, but
Plaintiff did not report that experience to any of her healthcare
providers when she returned from her trip.

In addition, in

December 2014 Plaintiff reported to an emergency-room doctor that
she hurt herself when she slipped on her friend’s floor and in
July 2015 Plaintiff sought treatment for injuries incurred while
roughhousing with a friend.
The Court concludes on this record that the ALJ did not err
when she partially rejected Plaintiff’s testimony because she
22 - OPINION AND ORDER

provided clear and convincing reasons supported by substantial
evidence in the record for doing so.
II.

The ALJ did not err when she only gave “some weight” to the
lay-witness statements of Plaintiff’s sister Allenisha B.
Plaintiff alleges the ALJ erred when she only gave “some

weight” to the lay-witness statements of Plaintiff’s sister
Allenisha B.
Lay-witness testimony regarding a claimant's symptoms is
competent evidence that the ALJ must consider unless she
“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,

See also Merrill ex rel.

Merrill v. Apfel, 224 F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ,
in determining a claimant's disability, must give full
consideration to the testimony of friends and family members.").
The ALJ's reasons for rejecting lay-witness testimony must also
be "specific."
2006).

Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir.

When "the ALJ's error lies in a failure to properly

discuss competent lay testimony favorable to the claimant, a
reviewing court cannot consider the error harmless unless it can
confidently conclude that no reasonable ALJ, when fully crediting
the testimony, could have reached a different disability
determination."

Stout, 454 F.3d at 1056.

Allenisha B. submitted a Third Party Adult Function Report

23 - OPINION AND ORDER

on August 7, 2014, in which she stated Plaintiff suffers anxiety
in public, which had become worse “recently.”

Tr. 367.

Allenisha B. noted Plaintiff cannot “go far outside most of the
time she can only go to the front porch.”

Tr. 368.

Allenisha B.

noted Plaintiff has people over to her house once or twice a
week, but she “no longer has a social life outside of her house.”
Tr. 370.

Allenisha B. also stated Plaintiff has trouble paying

attention for more than 20-30 minutes and needs instructions
repeated multiple times before she understands them.

Tr. 371.

Allenisha B. also submitted an undated written statement in
which she described the first time she saw how anxiety affects
Plaintiff:

She noted she and Plaintiff were at the grocery store

and suddenly Plaintiff looked faint, asked for the car keys, and
asked Allenisha B. to finish the grocery shopping.

Tr. 412.

Allenisha B. states Plaintiff cannot go to family functions, walk
outside, or ride bicycles with her daughter.

She believes

Plaintiff would have to be “heavily medicated” if she had to work
around people and that Plaintiff’s anxiety is “very
unpredictable.”

Tr. 412.

The ALJ gave “some weight” to Allenisha B.’s statements to
the extent that they indicate Plaintiff would have trouble
working around other people, remembering complex instructions, or
making complex work-related decisions.

The ALJ rejected the rest

of Allenisha B.’s statements on the ground that they are not
24 - OPINION AND ORDER

supported by the medical evidence and are based on Plaintiff’s
self-reports.
The Court concludes on this record that the ALJ did not err
when she only gave some weight to the lay-witness statements of
Allenisha B. because the ALJ provided specific reasons germane to
the witness for doing so.
III. The ALJ did not err when she failed to adopt all of the
limitations assessed by Dr. Hennings.
Plaintiff asserts the ALJ erred when she failed to adopt all
of the limitations assessed by Dr. Hennings, a nonexamining
physician.
A nonexamining physician is one who neither examines nor
treats the claimant.

Lester, 81 F.3d at 830.

"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."

Id. at 831.

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 his
reasons for doing so.

See, e.g., Morgan v. Comm'r of Soc. Sec.

Admin, 169 F.3d 595, 600-01 (9th Cir. 1999).

A nonexamining

physician's opinion can constitute substantial evidence if it is
supported by other evidence in the record.

Id. at 600.

On September 30, 2014, Dr. Hennings completed a Psychiatric
Review Technique assessment of Plaintiff based on her medical
25 - OPINION AND ORDER

records.

Dr. Hennings found Plaintiff has moderate limitations

in her ability to complete activities of daily living; to
maintain social functioning; and to maintain concentration,
persistence, or pace.

Tr. 81.

Specifically, Dr. Hennings found

Plaintiff has moderate limitations in her ability to understand,
to remember, and to carry out detailed instructions; to interact
appropriately with the general public; and to travel frequently
“to unfamiliar locations but would be capable of routine
transportation arrangements.”

Tr. 83-84.

The ALJ “generally adopted” Dr. Henning’s opinion “for
[Plaintiff’s] residual functional capacity, but declined to
limit [Plaintiff’s] travel.”

Tr. 33.

The ALJ noted Plaintiff

traveled to Indiana in December 2015, and Dr. Wicher, who
conducted an intellectual assessment of Plaintiff, did not
indicate Plaintiff had limitations on travel.
On this record the Court concludes the ALJ did not err when
she did not include in Plaintiff’s RFC the travel limitation
assessed by Dr. Hennings because she provided legally sufficient
reasons supported by substantial evidence in the record for doing
so.

In any event, even if the ALJ erred when she declined to

adopt Dr. Henning’s opinion as to Plaintiff’s limitations on
frequent travel to unfamiliar locations, the Court concludes such
error is harmless because none of the jobs identified by the VE
require frequent (or any) travel to unfamiliar locations.
26 - OPINION AND ORDER

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 7th day of March, 2019.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

27 - OPINION AND ORDER