Belanger v. Commissioner Social Security Administration

Filing 68

Opinion. The Commissioner's decision is affirmed and this case is dismissed. See formal order. Signed on 4/7/2014 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MICHELE BELANGER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
Tim D. Wilborn
Wilborn Law Office, P.C.
P.O. Box 370578
Las Vegas, Nevada 89137
Attorney for plaintiff
S. Amanda Marshall
United States Attorney
Adrian L. Brown
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97201
Richard A. Morris
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 901
Seattle, Washington 98104
Attorneys for defendant
Page 1 - OPINION AND ORDER

Case No. 6:07-cv-01727-AA
OPINION AND ORDER

AIKEN, Chief Judge:
Plaintiff Michele Belanger brings this action pursuant to the
Social Security Act

("Act")

to obtain judicial review of a final

decision of the Commissioner of Social Security ("Commissioner").
The

Commissioner

supplemental

denied

security

plaintiff's

income

( "SSI")

application
under

for

XVI

Act.

the

Title
For

the

reasons set forth below, the Commissioner's decision is affirmed
and this case is dismissed.
PROCEDURAL BACKGROUND

This

case has

a

long and complicated procedural history. 1

Plaintiff applied for SSI on December 15, 1998.

Tr. 74, 154, 2467.

The application was denied initially and upon reconsideration.
46, 2467.
issued

a

After a hearing, the Administrative Law Judge
decision,

on

March

31,

2001,

finding

disabled within the meaning of the Act.
2467.

Tr.

("ALJ")

plaintiff

910-21,

Tr.

not

1397-1442,

The Appeals Council accepted review and remanded the case

for further proceedings.
after

a

second administrative

unfavorable decision.
Council

Tr. 933-35, 2467.

declined

hearing,

On January 28, 2005,

the ALJ issued another

Tr. 16-25, 1369-96, 2467.

jurisdiction

over

the

plaintiff filed a complaint in this Court.

After the Appeals

ALJ's

2005

decision,

Tr. 2468.

On October 1, 2008, the Court reversed and remanded the ALJ's
decision, pursuant to sentence six of 42 U.S.C.

1

§

405(g), based on

The record before the Court constitutes over 2,600 pages,
but with some incidences of duplication. Where evidence occurs
in the record more than once, the Court will generally cite to
the transcript pages on which that information first appears.
Page 2 - OPINION AND ORDER

the existence of new and material evidence.
Accordingly,

on June 22,

2009,

Tr.

1476-77,

2468.

the Appeals Council vacated the

ALJ's 2005 decision and remanded this case for further proceedings.
Tr. 1478-80, 2468.
On April
plaintiff

was

29,

2010,

a

represented

vocational expert ("VE").

third ALJ hearing was
by

counsel

and

Tr. 2421-58, 2468.

held,

testified,

wherein

as

a

On May 19, 2010, the

ALJ issued a third decision finding plaintiff not disabled.
1456-75, 2468.

did

Tr.

The Appeals Council initially declined jurisdiction

after plaintiff filed exceptions; however, upon further review, the
Appeals Council issued a remand order, for additional proceedings,
to ensure that the ALJ considered additional evidence submitted at
the April 2010 hearing.
2012,

Tr. 1445-55, 2468, 2590-94.

a fourth hearing was held,

On August 20,

where plaintiff was once again

represented by counsel and testified.

Tr. 2621-38.

On September

21, 2012, the ALJ issued a fourth decision finding plaintiff not
disabled under the Act.

Tr. 2464-89.

On May 28, 2013, after the

Appeals Council denied review of the ALJ' s

2012 decision,

this

Court granted the parties' stipulated motion to reopen plaintiff's
appeal.
STATEMENT OF FACTS

Born on August 14,

1957, plaintiff was 41 years old on the

alleged onset date of disability and 55 years old at the time of
the 2012 hearing.

Tr. 54.

Plaintiff graduated from high school

and thereafter served in the navy for approximately four years; she
also

attended

some

college

Page 3 - OPINION AND ORDER

courses.

Tr.

14 00,

2130-31.

She

previously worked as a receptionist, medical clerk, media clerk,
administrative
Plaintiff

assistant,

alleges

and

disability

teacher's
as

of

Tr.

assistant.

December

15,

1998,

obesity, depression, and costochontritis. 2

fibromyalgia,

2451.
due

Tr.

to
74;

see also Pl.'s Opening Br. 2.
STANDARD OF REVIEW

The 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.
498,

501

(9th Cir.

Hammock v. Bowen,

879 F.2d

Substantial evidence is "more than a

1989).

It means such relevant evidence as a reasonable

mere scintilla.

mind might accept as adequate to support a conclusion."
v. Perales, 402 U.S. 389, 401 (1971)
N.L.R.B., 305 U.S. 197, 229

(1938)).

Richardson

(quoting Consol. Edison Co. v.
The court must weigh "both

the evidence that supports and detracts from the [Commissioner's]
conclusions."
1986) .

Martinez v.

Heckler,

807 F.2d 771,

772

(9th Cir.

Variable interpretations of the evidence are insignificant

if the Commissioner's interpretation is rational.

See Burch v.

Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The

initial

burden

establish disability.
Cir. 1986).

of

proof

rests

upon

the

claimant

to

Howard v. Heckler, 782 F.2d 1484, 1486 (9th

To meet this burden, the claimant must demonstrate an

"inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
2

"Costochontritis is a condition in which the muscles and
bones of the chest become irritated and sore." Tr. 2514.
It is
a benign and often temporary impairment.
Id.
Page 4 - OPINION AND ORDER

can be expected .

. to last for a continuous period of not less

than 12 months."
The

42 U.S.C.

Commissioner

423(d) (1) (A).

§

has

established

a

five-step

sequential

process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
Commissioner

determines

whether

a

"substantial gainful activity."
C.F.R.

416.920(b).

§

§

416.920.

claimant

Yuckert,

Bowen v.

4 82

First, the

is

engaged

in

at

20

U.S.

14 0;

If so, the claimant is not disabled.

At step two, the Commissioner determines whether the claimant
has a "medically severe impairment or combination of impairments."
Yuckert,

482

U.S.

at

140-41;

20

C.F.R.

§

416.920(c)

If

the

claimant does not have a severe impairment, she is not disabled.
At

step

three,

the

Commissioner

determines

whether

the

claimant's impairments, either singly or in combination, meet or
"one

equal

of

[Commissioner]

a

number

of

acknowledges

are

substantial gainful abtivity."
C.F.R.

§

416.920(d).

If

listed

so,

so

impairments
severe

Yuckert,
the

as

482 U.S.

claimant

that

to

preclude

at 140-41;

is

the

20

presumptively

disabled; if not, the Commissioner proceeds to step four.

Yuckert,

482 U.S. at 141.
At step four, the Commissioner determines whether the claimant
can still perform "past relevant work."
If the

claimant

can work,

she

is

not

20 C.F.R.
disabled;

§

if

416.920(e).
she cannot

perform past relevant work, the burden shifts to the Commissioner.
At step five, the Commissioner must establish that the claimant can
perform other

work

that

Page 5 - OPINION AND ORDER

exists

in

significant

numbers

in

the

national and local economy.
§

416.920 (e)

&

(f).

Yuckert, 482 U.S. at 141-42; 20 C.F.R.

If the Commissioner meets this burden,

claimant is not disabled.

20 C.F.R.

§

the

416.966.

THE ALJ'S FINDINGS
At step one of the five step sequential evaluation process
outlined above,

the ALJ found that plaintiff had not engaged in

substantial gainful activity since the application date.
At step two,

Tr. 2470.

the ALJ determined that plaintiff had the following

severe impairments:

"fibromyalgia/myofascial pain syndrome; pain

disorder; depressive disorder; obesity; and costochontritis."

Id.

At step three, the ALJ found that plaintiff's impairments did not
meet or equal the requirements of a listed impairment.

Tr. 2473.

Because she did not establish disability at step three, the
ALJ continued to evaluate how plaintiff's impairments affected her
ability to work.
functional

The ALJ resolved that plaintiff had the residual

capacity

("RFC")

to

perform

sedentary work," as defined by 20 C.F.R.

a
§

"modified

range

of

416.967(a):

[s]he can sit six hours in an eight-hour day; stand two
hours in an eight-hour day; lift and carry up to five
pounds; no reaching overhead; only walk slowly and
deliberately on even surfaces; because of pain and
deficits in concentration, [plaintiff] should not perform
skilled or complex work and is limited to semi-skilled
and unskilled work.
Tr. 2474-75.
At step four,

the ALJ found that plaintiff was "capable of

performing past relevant work as a receptionist
actually and generally performed."

Tr. 2 4 8 8.

Accordingly, the ALJ

concluded that plaintiff was not disabled under the Act.
Page 6 - OPINION AND ORDER

as it is

Id.

DISCUSSION

Plaintiff
assessing

the

argues

that

lay witness

the

ALJ

erred

statements

of

by:

Gail

(1)

improperly

Banbury,

Valerie

Barnell, Connie Williams, Inge Johnson, Brenda Jackson, Tanya Eng,
Jean Owens, Lorri Schinderle, Michelle Holmes, and Mike Nelson; (2)
discrediting opinion evidence from Kip Kemple, M.D., Daniel Hanson,
M.D.,

Melanie

Doak,

M.D.,

and

rehabilitation consultant; and (3)

Davit

Hi tt,

a

vocational

failing to include all of her

limitations in the RFC, thereby rendering the VE's testimony and
the ALJ's step four finding invalid.
I.

Lay Witness Testimony
Plaintiff asserts that the ALJ failed to articulate a germane

reason to reject "[t]he statements of Plaintiff's ten witnesses."
Pl.'s

Opening

symptoms

or

Br.

how

an

19.

Lay

testimony

impairment

affects

regarding
the

a

ability

claimant's
to

competent evidence that an ALJ must take into account.
Astrue,

674 F.3d 1104,

1114

(9th Cir.

2012)

work

is

Molina v.

(citation omitted).

The ALJ must provide "reasons germane to each witness" in order to
reject

such

omitted).

testimony.

Id.

(citation

and

internal

quotation

In rejecting lay statements, however, the ALJ need not

"discuss every witness's testimony on a individualized, witness-bywitness basis . . . 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."
(citations omitted).

Page 7 - OPINION AND ORDER

Id.

The ten lay witnesses mentioned above each provided a brief
written statement concerning plaintiff.

Specifically, in February

1999, Ms. Banbury completed a Third-Party Adult Function Report, in
which she indicated that plaintiff goes shopping, dines out, visits
friends, drives, watches television, walks on her treadmill, plays
cards, prepares meals, performs laundry and vacuuming, reads, and
is

independent

in

her

self-care,

although

she

"[c]onstantly

complains about pains in arms, knees and joints .

[and] about

not being able to do physical activities because of pain
[o]ccasional memory

loss."

Tr.

88-96.

[and]

The ALJ afforded Ms.

Banbury's statements "some weight" because they were "consistent
with the capacity for sedentary work."

Tr. 2486.

As such, the ALJ

did not reject Ms. Banbury's lay testimony and instead fashioned a
RFC

consistent

therewith.

testimony), with Tr. 2474-75

Compare

Tr.

88-96

(Ms.

Banbury's

(RFC limiting plaintiff to standing

two hours and sitting six hours in an eight-hour workday,

with

lifting/carrying no more than five pounds, no overhead reaching,
slow walking on even surfaces, and no skilled or complex tasks).
In February 2002, Ms. Barnell contributed another Third-Party
Adult Function Report,
shopping,

visits

with

in which she recorded that plaintiff goes
friends

and

relatives,

drives,

watches

television or movies, plays cards, uses the internet, performs art
and

crafts

projects,

prepares

easy meals

for

herself

and

her

children, does laundry, reads, and is independent in her self-care.
Tr.

2082-93.

Nevertheless,

Ms.

Barnell

opined

concentration, range of motion limited, nausea, pain,
Page 8 - OPINION AND ORDER

that

"slowed

[and] vision

problems" would interfere with plaintiff's ability to work on a
regular basis.

Tr. 2092.

The ALJ did not discuss or otherwise

acknowledge Ms. Barnell's third-party statements.

See Tr. 2467-89.

Nonetheless,

and

Ms.

Barnell

endorses

activities

limitations

similar to those described by Ms. Banbury, and the ALJ accepted Ms.
Banbury's statements and accounted for them in the RFC.
75,

2486.

Because the ALJ's RFC

is

Tr. 2474-

compatible with both Ms.

Banbury's and Ms. Barnell's third-party statements, any error in
failing

to address Ms.

Molina,

674

F.3d

Barnell's testimony was

at

1114-22

(outlining

the

harmless.
harmless

See
error

standard).
In

July

testified that

2003,

Ms.

Williams,

an

education

administrator,

letters plaintiff wrote excusing her daughter's

absences from school exhibited poor handwriting, which plaintiff
explained was due to the fact she wrote them left handed because
"of her fibromyalgia and weakness in her right arm."
ALJ rejected Ms. Williams'

Tr. 958.

The

opinion because it "was based on the

subjective statements by the claimant and other examples of her
handwriting in the record are certainly legible."

Tr. 2486.

ALJ

based

need

not

accept

opinion

evidence

claimant's discredited statements.
1035, 1043 (9th Cir. 1995).

that

Andrews v.

is

Shalala,

on

An
the

53 F. 3d

Here, the record supports the ALJ's

conclusion; Ms. Williams' letter is plainly based on plaintiff's
self-reports, which the ALJ found lacked credibility and plaintiff

Page 9 - OPINION AND ORDER

does not now challenge that finding.

3

Further, other evidence of

record evinces that plaintiff did not struggle with her handwriting
to the extent indicated by Ms.
678, 2094-97, 2100
from plaintiff);

See,

Williams.

e.g.,

Tr.

73-82,

(legibly completed handwritten notes and forms

see also Tr.

1133

(plaintiff "was observed to

regularly take notes" throughout 14 group counseling sessions).
In July and August 2004, Ms.

Johnson, Ms.

Jackson, Ms. Eng,

and Ms. Owens submitted letters on behalf of plaintiff's disability
claim.

Tr.

plaintiff's
Johnson,

Ms.

27,

978-80.

reports

These

of weakness,

Jackson,

Ms.

Eng,

third-party
pain,
and

statements

reflect
Ms.

and fatigue.
Ms.

Owens

also

reported

observing plaintiff frequently lying down or taking naps.
March and April 2012, Ms.

Holmes,

and

Mr.

In

Schinderle, Ms. Holmes, and Mr. Nelson

likewise furnished letters.
Ms.

Id.

Tr. 2568-70.

Nelson

3

never

Although Ms. Schinderle,

noticed

plaintiff

in

their

Plaintiff does argue, however, that the ALJ erroneously
relied on her activities of daily living to discredit the medical
opinion evidence and lay statements.
See Pl.'s Opening Br. 17,
19. Here, the ALJ's credibility determination was based on a
variety of reasons, including plaintiff's activities of daily
living, inconsistent statements, performance of work after the
alleged onset date, departure from a job for reasons unrelated to
her alleged disability, secondary gain-seeking behavior, and noncompliance with treatment.
Tr. 2476-2481.
Because plaintiff
does not challenge this finding generally, the issue of whether
the ALJ erroneously rejected other evidence because it was based
on plaintiff's discredited self-reports is not properly before
the Court.
See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir.
1994) (court only considers those "issues which are argued
specifically and distinctly in a party's opening brief").
In any
event, while some evidence concerning plaintiff's daily
activities may be interpreted more favorably to her, the ALJ's
decision regarding this issue is nonetheless supported by the
record as a whole and therefore must be affirmed.
Batson v.
Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004).
Page 10 - OPINION AND ORDER

apartment building's workout room,
pets out on short walks.
Nelson

were

"aware

Id.

of

difficulties she has."

they had seen her taking her

Ms. Schinderle, Ms. Holmes, and Mr.

[plaintiff's]

pain

problems

and

the

Tr. 2569; see also Tr. 2568, 2570.

The ALJ credited these lay statements "to the extent that they
are consistent" with the record,

including the objective medical

evidence and evidence of plaintiff's activities of daily living.
Tr. 2486-87.

Additionally, the ALJ found that plaintiff's fatigue

related to sleeplessness had improved and her "failure to appear in
the

building's

activities

exercise

described

room

does

elsewhere

not

negate
this

in

the

substantial

opinion."

Id.

Inconsistency with ·or lack of corroboration by the medical record
is a germane reason to discredit third-party statements.
Apfel,

236 F. 3d 503,

511

(9th Cir.

Lewis v.

2001); Glover v. Astrue,

835

F.Supp.2d 1003, 1012-14 (D.Or. 2011).
To the extent the ALJ discredited evidence from Ms. Johnson,
Ms.

Jackson, Ms. Eng, Ms. Owens, Ms.

Mr.

Nelson as

being contrary to

Schinderle, Ms. Holmes,

the

objective medical

substantial evidence supports the ALJ's conclusion.
668-71,

682-84,

686-87,

700-01,

900-01,

1017-18,

and

record,

See, e.g., Tr.
1028,

1170-76,

1213-17, 1327, 1621-25, 1776, 1816 (extensive imaging studies, in
the

form of MRis,

hands,

x-rays,

ankle, wrists,

and CTs,

of plaintiff's back,

hips,

legs, and shoulder, revealing results that

are unremarkable or largely within the normal range for her age);
see also Tr. 2470-71, 2478, 2484-85

(ALJ summarizing plaintiff's

relatively normal objective findings, other than those relating to
Page 11 - OPINION AND ORDER

fibromyalgia).

Additionally, the ALJ is correct that the record

demonstrates plaintiff's fatigue-related symptoms have improved,
such that these third-party statements no longer accurately depict
her functioning.
that

she

Namely, at the 2010 hearing, plaintiff explained

"finally

overcame"

her

depression.

Tr.

2442.

She

testified further that her "sleep has improved greatly," to between
six and eight hours a night, such that she no longer "naps in the
afternoon anymore."
In

sum,

with

Tr. 2445.
the

exception

of

Ms.

Barnell,

the

ALJ

individually summarized and weighed each third-party statement and,
where this evidence was rejected,

the ALJ provided at least one

reason germane to each witness for doing so.

Tr. 2486-87.

Even

assuming, however, that the ALJ erred in assessing the third-party
statements,

such error was harmless.

Molina,

674

F. 3d at 1122

(ALJ's failure to provide a germane reason to reject "lay witness
testimony is harmless where the same evidence that the ALJ referred
to in discrediting the claimant's claims also discredits the lay
witness's claims") (citation and internal quotations omitted).

The

testimony from Ms. Banbury, Ms. Barnell, Ms. Williams, Ms. Johnson,
Ms. Jackson, Ms. Eng. Ms. Owens, Ms. Schinderle, Ms. Holmes, and
Mr.

Nelson

concerning

plaintiff's

fatigue-

and

pain-related

functional limitations is nearly identical to plaintiff's.

Compare

Tr.

hearing

1372-82,

testimony),
(third-party
convincing

1400-18,

with

Tr.

2434-50,

27,

88-96,

statements) .
reasons

to

958,

(plaintiff's

978-80,

The ALJ provided

reject

Page 12 - OPINION AND ORDER

2625-38

plaintiff's

2082-93,
several

2568-70

clear

subjective

and

symptom

statements that are equally applicable to the lay testimony.
example,

plaintiff's activities of daily living,

For

secondary-gain

seeking behavior, and performance of paid work after the alleged
onset date erode the credibility of both her and the lay witnesses'
statements.

See Tr.

2477-87;

Sec. Admin., 574 F. 3d 685,

694

see also Valentine v.
(9th Cir. 2009).

Comm'r Soc.

Thus, the ALJ's

evaluation of the lay witness testimony is affirmed.
II.

Opinion Evidence
Plaintiff also contends that the ALJ neglected to provide

legally sufficient reasons, supported by substantial evidence, to
reject the opinions of Mr. Hitt and Drs. Kemple, Hanson, and Doak. 4
A.

Non-Acceptable Medical Source Evidence

While

only

"acceptable medical

sources"

can

diagnose

and

establish that a medical impairment exists, evidence from "other
sources" can be used to determine the severity of that impairment
and how it affects the claimant's ability to work.
416.913(a),

(d).

"Other

4

sources"

include,

in

20 C.F.R.

relevant

§

part,

In the alternative, plaintiff argues that the ALJ should
have developed the record further in regard to Mr. Hitt's and Mr.
Hanson's opinions.
The claimant bears the burden of proving the
existence of an impairment, such that the ALJ's limited "duty to
further develop the record is triggered only when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d
453, 460 (9th Cir. 2001). Neither the ALJ nor any medical source
found the extensive record in the case at bar to be ambiguous or
insufficient for proper evaluation.
Furthermore, plaintiff does
not identify how additional information gleaned from recontacting
Mr. Hitt and Dr. Hanson could or would have impacted her claim.
See generally Pl.'s Opening Br.; Pl's Reply Br.; see also McLeod
v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (party seeking
reversal bears the burden of establishing harmful error) . Under
these circumstances, the ALJ's duty to more fully develop the
record was not triggered.
Page 13 - OPINION AND ORDER

counselors.

20 C.F.R.

416.913(d); SSR 06-03p, available at 2006

WL 2329939.

As noted above, to disregard the opinion of an other,

§

or lay, source, the ALJ need only provide a reason that is germane
to that witness.

Turner v.

Comm' r

of Soc.

Sec.,

613 F. 3d 1217,

1223-24 (9th Cir. 2010).
In May 2005, plaintiff attended a one-time functional capacity
evaluation with Mr. Hitt.

Tr. 2496-98, 2503-13.

consisted of a number of vocational tests;

The examination

however,

neither the

tasks themselves nor plaintiff's results are explained within the
report.

Id.

These tests revealed that plaintiff "met the minimum

aptitude profile . . . for only 2 of the 66 occupational groups on
the O*Net Ability Profiler."

Tr.

2 4 97.

Nevertheless,

opined that he saw "no medical evidence that
sustain function in such jobs."

Id.

Mr.

[plaintiff]

Hi tt
could

In relaying his "Interim

Conclusions," Mr. Hitt noted that plaintiff has "a significant load
to bear" due to her "two special needs children," such that he
questioned "[w]hat else could she take on that would not interfere
with the meeting of their needs?"
further

evaluation

of

Tr. 2498.

plaintiff's

physical

He also recommended
and

psychological

impairments, in part because he found "little of substance written
out in her medical records explaining just why she cannot work."
Id.
In discussing these findings, the ALJ accurately observed that
Mr.

Hitt assessed plaintiff with "average math skills" and good

"form perception, vocabulary, and clerical perception," such that
she retained the ability to "perform two of the 66 jobs listed on
Page 14 - OPINION AND ORDER

the O*Net Ability Profiler."

Tr. 2487-88.

The ALJ also listed two

reasons for affording "little weight" to Mr. Hitt's opinion.

Id.

First, the ALJ denoted that Mr. Hitt "is not an acceptable medical
source" and "lacks medical training, yet he makes several medical
conclusions."

Tr.

2488.

Second,

the ALJ found that Mr.

Hitt's

"statements are not objective and impartial, and he appears to be
acting as [plaintiff's] advocate instead of someone who evaluates
her

job

skills,"

[plaintiff's]

as

indicated by the

fact

that

he

"describes

'heavy load'" and her "two special needs children."

Id.
Initially,

contrary to plaintiff's assertion,

the objective

test results from Mr. Hitt's evaluation are not alone indicative of
disability.

Indeed, the objective tests administered by Mr. Hitt

confirmed that plaintiff was capable of performing jobs within two
distinct occupational clusters, despite obtaining "extremely low"
scores on manual dexterity tasks.

Tr.

2497.

Further,

to the

extent plaintiff contends that her low manual dexterity scores
should have been accounted for in the RFC,
persuasive.

her argument is not

An ALJ can disregard a medical report that does "not

show how [a claimant's] symptoms translate into specific functional
deficits which preclude work activity."
Sec. Admin.,

169 F.3d 595,

601

Morgan v. Comm'r of Soc.

(9th Cir. 1999).

The Court finds

that, by extension, the ALJ did not err by failing to account for

Page 15 - OPINION AND ORDER

plaintiff's manual dexterity tests because Mr. Hitt neglected to
convert these results into work-place restrictions. 5
In any event, the record demonstrates that, based on his lay
consideration of the medical evidence,

Mr.

Hitt concluded that

plaintiff could not sustain function over the jobs identified in
the O*Net Ability Profiler.

Tr. 2497.

The Court finds that Mr.

Bitt's lack of medical training is a germane reason to discredit
his

medically-based

conclusion

regarding

especially in light of the fact that Mr.
access
2496-97.

to

a

complete

and

accurate

sustained

function,

Hitt may not have had

medical

history.

See

Tr.

Lastly, while an ALJ's decision to afford less weight to

a non-acceptable medical source statement due to the appearance of
bias is generally disfavored, the ALJ may nonetheless reject such
an opinion where,
lack

of

as here,

obj ecti vi ty or

improper

Astrue, 2010 WL 1327063, *9
Colvin,

2014

WL

there is some evidence implicating a

1116780,

5

advocacy.

See,

e.g.,

Ask v.

(D.Idaho Mar. 29, 2010); Fentress v.
*4

(W.D.Wash.

Mar.

2 0'

2014) .

The ALJ is responsible for resolving conflicts in the
medical testimony and translating the claimant's impairments into
concrete functional limitations in the RFC.
See Stubbs-Danielson
v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). As such, the ALJ
summarized and weighed approximately fourteen years worth of
medical records to formulate plaintiff's RFC.
Pursuant to this
task, the ALJ acknowledged other evidence indicating that
plaintiff retains manual dexterity skills in excess of what was
evaluated by Mr. Hitt.
Tr. 2480, 2485.
For instance, a
subsequent vocational evaluation "reflect[ed] good hand/eye
coordination and fine motor dexterity skills," with plaintiff
reporting "[n]o increased physical discomfort .
. from grasping
and fingering small objects for a short period of time." Tr.
1447-48, 2487.
Furthermore, plaintiff engaged in a slate of arts
and crafts projects during the relevant time period, including
refinishing furniture, sewing, and quilting, all of which
entailed detailed use of her hands.
Tr. 2474, 2477.
Page 16 - OPINION AND ORDER

Accordingly,

the

ALJ' s

decision

is

affirmed

as

to

Mr.

Hi tt' s

opinion.
B.

Acceptable Medical Source Evidence

There are three types of medical opinions in social security
cases: those from treating, examining, and non-examining doctors.
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
medical

evidence,

"a treating physician's

In considering

opinion carries more

weight than an examining physician's, and an examining physician's
opinion carries more weight than a reviewing physician's."
v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001).

Holohan

More weight is

afforded to "opinions that are explained than to those that are
and to the opinions of specialists concerning matters

not,

relating to their specialty over that of nonspecialists."
( citations omitted) .
treating

or

examining

Id.

To reject the uncontroverted opinion of a
doctor,

the

convincing reasons for doing so.
1211, 1216 (9th Cir. 2005)

ALJ must
Bayliss v.

present
Barnhart,

clear

and

427 F. 3d

(citing Lester, 81 F.3d at 830-31).

If

a treating or examining doctor's opinion is contradicted by another
doctor's opinion,
reasons.

it may be rejected by specific and legitimate

Id.
Dr. Kemple

i.

In September 2005, Dr. Kemple produced a report in which he
summarized

his

one-time

musculoskeletal problems."

assessment
Tr.

of

2544-45.

plaintiff's
Dr.

"chronic

Kemple diagnosed

plaintiff with "Chronic Arthralgia-Myalgia Syndrome (onset 3/98),"
listing fibromyalgia and pain in the neck,
Page 17 -OPINION AND ORDER

shoulder,

hand,

low

back, hip, and knee as a subset of this diagnosis.

Tr. 2544.

The

doctor then reiterated plaintiff's subjective statements regarding
her pain issues, which depicted her as being se~erely limited in
her physical functioning and having to spend several days in bed
even after low-impact activities,

and "also reviewed

[a]

stack of medical records provided from [the] VA clinic."
Kemple

concluded

progressive

that

plaintiff's

degenerative

problems,"

"relatively
which

large

Id.

Dr.

chronic

and

"probably"

include

"chronic tendinitis and arthritis in her right shoulder" and are
"confounded by

a

chronic

musculoskeletal

pain

compatible

with

fibromyalgia," limit her activities such that "it is unlikely that
she could be working on any regular basis."

Tr. 2545.

Dr. Kemple

noted, however, that "current x-rays of her right shoulder, neck,
and low back would clarify several of the problems noted above."
Id.
The ALJ gave "little weight" to "Dr.

Kemple's opinion that

Tr. 2484.

The ALJ set forth

three reasons in support of this determination:

(1) Dr. Kemple saw

[plaintiff] would be unable to work."

plaintiff "only one time, and his opinion is not consistent with
the objective medical evidence"; (2) "his analysis took place three
months after [plaintiff] placed significant pressure on Dr. DiCarlo
to

make

a

statement

about

the

impact

of

fibromyalgia

on

her

disability claim"; and (3) "a series of MRis, x-rays, and CT scans
[from 2009]

show [ed]

cervical spine;
shoulder

only mild degeneration

of the

lumbar and

normal condition of the lower extremities;

degeneration

without

Page 18 - OPINION AND ORDER

interval

changes;

and

left
no

abnormalities in the hips."

Tr.

2484-85;

see also Tr.

1621-25

(2009 imaging studies).
An ALJ may reject a contradicted medical report nby setting
out a detailed and thorough summary of the facts and conflicting
clinical evidence, stating his interpretation thereof, and making
findings."

Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989).

That is precisely what transpired in the case at bar.

The ALJ

summarized, weighed, and made findings regarding opinion evidence
from two vocational counselors, a mental health nurse practitioner,
four

state

agency

examining doctors,
also

examined

and

consulting

doctors,

including Dr.
interpreted

and

seven

Tr.

Kemple.

or

2475-88.

The ALJ

objective

plaintiff's

findings, as well as MRis, x-rays, and CTs.

treating

clinical

Tr. 2470-71, 2475-88.

Based on this evidence, including more recent and relatively benign
imaging

studies,

6

in

conjunction

with

plaintiff's

gain-seeking

behavior and the fact that Dr. Kemple saw plaintiff only once, the
ALJ afforded less weight to Dr. Kemple's conclusory report.
fact

that

plaintiff

disagrees

with

the

ALJ's

The

rational

interpretation of the record is an insufficient basis to overturn
that decision.

See Burch,

6

400 F.3d at 679.

As such,

the ALJ

To the extent plaintiff asserts that the ALJ's reliance on
subsequent imaging studies nis misplaced" because nfibromyalgia
doesn't show on x-rays or MRI scans," her argument is unavailing.
Pl.'s Opening Br. 18.
Dr. Kemple's opinion that plaintiff is
disabled was not based on her diagnosis of fibromyalgia, but
rather on her nprogressive degenerative problems," which are, in
fact, apparent on imaging studies.
Tr. 2545. As a result, the
doctor himself recognized that obtaining up-to-date x-rays nwould
clarify several of the problems noted above." Id.
Page 19 - OPINION AND ORDER

provided a

legally sufficient

reason,

supported by substantial

evidence, for discrediting Dr. Kemple's opinion.
ii.

Dr. Hanson

In May 2009, plaintiff established care with Dr. Hanson for
management of her pain complaints and other periodic conditions.
Tr.

1842,

1853-57.

In

December

2009,

Dr.

Hanson

completed a

disability form prepared by plaintiff's counsel.
1653.

Dr. Hanson listed

~myofascial

Tr.

1527-30,

pain syndrome, osteoarthritis,

and degenerative disc disease" as plaintiff's diagnoses.

Tr. 1527.

The doctor indicated that plaintiff could not lift or carry ten
pounds, even occasionally; could stand and/or walk, and sit,

for

less than two hours total in an eight-hour workday and for no more
than fifteen to twenty minutes at a time;

could not push/pull,

reach overhead, work at bench level, kneel, crawl, crouch, climb,
or perform manual gross/fine dexterity
Tr. 1528-29.
rest

for

~even

for a few minutes."

In addition, Dr. Hanson stated that plaintiff

a

few

minutes

after

15-2 0 minutes

including sitting," although she could

~maintain

of

any

~must

activity,

concentration and

attend to tasks, but can perform light tasks only 15-20 minutes at
a time."

Tr. 1529.

In response to the question

~[a]s

of what date

have these limitation been present," Dr. Hanson responded November
1, 1998.
The

Tr. 1530.
ALJ

~[a]lthough

discredited

Dr.

Hanson is

Dr.

Hanson's

[plaintiff's]

December

2009

report:

treating physician,

his

opinion is not given controlling weight because it is inconsistent
with the record as a whole and appears to be based on [plaintiff's]
Page 20 - OPINION AND ORDER

subjective

reporting

of

pain."

Tr.

2482.

A medical

opinion

npremised to a large extent upon the claimant's own accounts of his
symptoms and limitations may be disregarded, once those complaints
have themselves been properly discounted."

Andrews,

53 F.3d at

1043.
Here, a review of Dr. Hanson's chart notes confirms that his
December 2009 opinion was based on plaintiff's uncredible selfreports.

Dr.

Hanson

stated

that

his

treatment

of

plaintiff

entailed nhaving her come to the clinic on a regular[ly] scheduled
basis to hear about her [symptoms], to try to reassure her, and to
make sure that nothing of significance pops up."
also Tr.

1708-15, 1736-42, 1800-04.

As such,

Tr.

1654; see

Dr. Hanson did not

independently assess plaintiff's functional limitations.

Further,

Dr. Hanson documented plaintiff's unremarkable objective tests and
evaluations,

and

noted

that,

n [d] espite

[plaintiff's

pain

complaints, she] continues to do (and enjoys doing) many activities
around the house."

Tr. 1843; see also Tr. 1654, 1816.

The only other evidence in Dr. Hanson's chart notes pertaining
to plaintiff's functioning is a November 2009 pain consultation
report, which Dr. Hanson ordered because plaintiff had repeatedly
asked him to complete disability paperwork on her behalf.
~'

Tr. 1653-60, 1754, 1800.

plaintiff's

subjective

See,

The pain clinic examiner documented

complaints

and

performed

a

physical

evaluation, which yielded results within the normal range; although
the examiner reported that it was nnot possible for me to determine
her primary problem," he recommended that plaintiff lose weight and
Page 21 - OPINION AND ORDER

increase her activity due to her obesity and deconditioning.

Tr.

1653-60.
In

sum,

there

is

nothing

in

Dr.

Hanson's

chart

notes

supporting the degree of limitation endorsed in his December 2009
opinion.

Indeed,

Dr.

Hanson's

functional

restrictions

closely

mirror plaintiff's discredited subjective symptom statements.
~'

Tr.

2438-40,

2442-44.

For instance,

Dr.

See,

Hanson recounted

that plaintiff's impairments existed as of 1998, despite the fact
that he did not begin treating her until over ten years thereafter.
The ALJ's finding,

that Dr.

Hanson's report was not entitled to

controlling weight because it was based on plaintiff's uncredible
subjective

symptom statements,

was

reasonable and is

therefore

upheld.
iii. Dr. Doak
In 2011, plaintiff began treatment with Dr. Doak.

Tr. 2625.

The record does not contain any of Dr. Doak's chart notes; however,
the doctor filled out a questionnaire from plaintiff's counsel in
July 2012.
combination

Tr. 2615-20.
of

costochontri tis,

Dr. Doak outlined "chronic pain due to

myofascial

plaintiff

and

depression and anxiety,

insomnia as plaintiff's diagnoses.
that

pain

could

not

lift

allergic rhinitis,

Tr. 2625.
or

osteoarthritis,"
and

The doctor indicated

carry

ten

pounds,

even

occasionally; could stand and/or walk for less than two hours total
in an eight-hour workday and for

no more

than

five

to

twenty

minutes at a time; must alternate between sitting, standing, and
walking every five to ten minutes; and would not be able to sustain
Page 22 - OPINION AND ORDER

concentration, persistence, and pace or perform simple, repetitive,
routine tasks for eight hours a day, five days per week.
18.

While

Dr.

"(u]nderstand,

Doak

endorsed

"[n] o

significant

Tr. 2616-

inability"

to

remember and follow simple instructions and work-

like procedures," and to "[w]ork without special supervision, ask
appropriate

questions

and

receive

appropriate

criticism,"

she

reported that plaintiff's "physical impairments make this somewhat
irrelevant

when

procedures."

considering

whether

she

can

perform

such

Tr. 2618-19.

Dr. Doak stated, however, that she "cannot assess" limitations
associated with "upper extremity pushing /pulling, reaching overhead
and working at bench level," "manual functioning, gross and fine,"
and

"kneeling,

"recommend[ed]

crawling,
[a]

formal

crouching
functional

and
capacity

climbing,"

and

evaluation

not

performed by VA" to determine plaintiff's physical capabilities.
Tr.

2617.

Dr.

Doak explained that these limitations have "been

apparent" since January 2011,

but opined further that plaintiff

"has been unable to work for

some time as documented by other

records

(physical

capacity eval,

Dr.

Kip Kemple) . "

Tr.

Finally, the doctor found plaintiff to be "very credible."

2620.
Id.

The ALJ afforded Dr. Doak's analysis "little weight" because
"her opinion is contradictory."

Tr. 2484.

Specifically, the ALJ

denoted Dr. Doak:
gives limitations on standing, walking, and lifting, but
she defers on postural and upper extremity limitations
because she does not want to provide a functional
capacity evaluation.
Dr. Doak says [plaintiff] has no
problem with simple tasks, y~t she indicates that
Page 23 - OPINION AND ORDER

[plaintiff's] physical concerns- which she did not fully
evaluate - preclude her from performing work.
Id.

The ALJ also found that, although Dr. Doak stated plaintiff

was credible, her opinion did "not address the credibility concerns
discussed elsewhere in this opinion."
As discussed throughout,

Id.

an ALJ need not accept a medical

opinion that is based on the claimant's uncredible self-reports.
Andrews, 53 F.3d at 1043.

Further, an ALJ may discount a medical

report if it is internally inconsistent.
603.

See Morgan, 169 F.3d at

Here, the ALJ is correct that Dr. Doak's opinion regarding

plaintiff's
activity,
basis

functional

deficits,

is irreconcilable.

for

her

conclusions,

which

Dr.

allegedly preclude

work

Doak does not articulate any

including

her

own

chart

notes

or

clinical findings, other than a passing reference to Dr. Kemple's
report.
certain

As such,

Dr.

limitations,

Doak's statement that she "cannot assess"
while

at

the

same

time

signifying

that

plaintiff is functionally restricted in other areas, indicates that
her

report

is

premised

largely

on

plaintiff's

discredited

testimony.
In other words,

because Dr.

Doak did not perform a formal

functional capacity evaluation, the only information upon which her
limitations relating to standing,

walking,

and sitting could be

based is plaintiff's own descriptions of her impairments or other
evidence of record; yet it is unclear from her report whether or to
what extent she reviewed plaintiff's longitudinal medical history
pursuant

to

her

assessment.

limitations identified by Dr.
Page 24 - OPINION AND ORDER

Regardless,

like

Dr.

Hanson,

the

Doak parrot plaintiff's subjective

symptom statements, resulting in an internally inconsistent report.
Accordingly,
supported

by

opinion.

the

ALJ

provided

substantial

a

legally

evidence,

for

sufficient

rejecting

Dr.

reason,
Doak's

The ALJ's evaluation of the opinion evidence is affirmed.

III. RFC Assessment and Step Four Finding
Finally,

plaintiff

argues

that

the

ALJ's

RFC

and,

by

extension, his step four finding are erroneous because they do not
account for limitations described by Mr.
Doak,

Dr.

Johnson,

Kemple,
Ms.

Ms.

Jackson,

Banbury,
Ms.

Eng.

Hi tt,

Ms.

Barnell,

Ms.

Owens,

Dr.

Hanson,

Dr.

Williams,

Ms.

Schinderle,

Ms.

Ms.

Ms.

Holmes, and Mr. Nelson.
The RFC is the maximum that a claimant can do despite her
limitations.
ALJ must

See 20 C.F.R.

§

416.945.

consider restrictions

In determining the RFC, the

imposed by all

of a

claimant's

impairments, even those that are not severe, and evaluate "all of
the relevant medical and other evidence," including the claimant's
testimony.

SSR

96-8p,

available

at

1996

WL

374184.

Only

limitations supported by substantial evidence must be incorporated
into

the

RFC

and,

by

question posed to the VE.

extension,

the

dispositive

hypothetical

Osenbrock v. Apfel, 240 F.3d 1157, 1163-

65 (9th Cir. 2001).
As discussed above, the ALJ properly discredited the opinions
of Mr. Hitt and Drs. Hanson, Doak, and Kemple.

In addition, to the

extent limitations described therein were not incorporated into the
RFC,

the ALJ articulated germane reasons

witness statements.

for

rejecting the lay

Accordingly, plaintiff's argument, which is

Page 25 - OPINION AND ORDER

contingent

upon

a

finding

aforementioned issues,

of

harmful

error

is without merit.

in

regard

Bayliss,

to

the

427 F.3d at

1217-18; Stubbs-Danielson, 539 F.3d at 1175-76.
CONCLUSION

For the foregoing

reasons,

the Commissioner's decision is

AFFIRMED and this case is DISMISSED.
IT IS

SO ORD/fJ{Vl

Dated this

day of April 2014.

Ann Aiken
United States District Judge

Page 26 - OPINION AND ORDER