Elstun v. Commissioner, Social Security Administration

Filing 20

OPINION AND ORDER. Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion. IT IS SO ORDERED. Signed on 10/09/2013 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

PENNY R. ELSTUN,
Plaintiff,

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MAX RAE
P.O. Box 7790
Salem, Oregon 97303
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 97204-2902
GERALD J. HILL
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant

1 - OPINION AND ORDER

6:12-cv-01811-MA
OPINION AND ORDER

MARSH, Judge
Plaintiff, Penny R. Elstun, brings this action for judicial
review of a final decision of the Commissioner of Social Security
(the

Commissioner)

denying

her

applications

for

disability

insurance benefits (DIB) under Title II of the Social Security Act
(the

Act)

and

supplemental

security

benefits under Title XVI of the Act.
1381-1383f.
405 (g).

income

(SSI)

See 42 U.S.C.

disability
401-434,

§§

This court has jurisdiction pursuant to 42 U.S.C.

For the reasons set forth -below,

I

§

reverse the final

decision of the Commissioner and remand for further proceedings
consistent with this opinion.
PROCEDURAL BACKGROUND

Plaintiff filed prior applications for SSI and DIB on October
3,

2007,

which were denied initially and upon reconsideration.

Plaintiff then protectively filed the instant applications for DIB
and SSI on April 13, 2009, alleging disability due to "[l)ower back
and

both

legs

and

mental

health

problems."

Tr.

205.

Her

applications were again denied initially and upon reconsideration.
A hearing was held before an Administrative Law Judge (ALJ) on June
9,

2011,

at

testified.

which

plaintiff

was

Vocational Expert

(VE)

represented

by

counsel

and

Nancy Bloom was also present

throughout the hearing and testified.
On

August

19,

2011,

the

ALJ

issued ·a

decision

plaintiff not disabled within the meaning of the Act.
2 - OPINION AND ORDER

finding

After the

Appeals Council declined review of the ALJ's decision,

plaintiff

timely filed a compl·aint in this court.

FACTUAL BACKGROUND
Born on August 8,

1974,

plaintiff was 32 years old on the

alleged onset date of disability and 36 years old on the date of
the hearing.

Plaintiff has a high school diploma with some college

education, and past relevant work as a Caregiver.

Tr.

35, 209.

Plaintiff alleges her conditions became disabling on August 9,
2006.

Tr.

In addition to her hearing testimony, plaintiff

149.

submitted an Adult

Function

Report.

Tr.

229-36.

Plaintiff's

mother, Jerrie Lynn Elstun submitted an Adult Third Party Function
Report.

Tr. 239-46.

Also of record are an Adult Function Report

submitted by plaintiff for her 2007 application, as well as a Third
Party

Function

Report

submitted by

plaintiff's

then-boyfriend,

Arvel Ray Monroe filed in relation to the prior application.

Tr.

174-81, 185-92.
In addition to a number of other examining physician reports
and Residual Functional Capacity Assessments of record that are not
directly at
chart

notes

plaintiff's

issue in this appeal,
and

letters

conditions

the record contains multiple

addressed
from

Ill
3 - OPINION AND ORDER

various

plaintiff's

practitioner, Julie Slind-Hull, FNP.

Ill

to

agencies
treating

about
nurse

THE ALJ'S DISABILITY ANALYSIS

The

Commissioner

has

established

a

five-step

sequential

process for determining whether a person is disabled.
Yuckert,

482

U.S.

137,

404.1520(a) (4) (i)-(v),

Cir. 1999).
show that

(1987);

416.920(a) (4) (i)-(v).

potentially dispositive.
Steps One through Four.

140-42

20

Bowen v.
C.F.R.

Each

§§

step

is

The claimant bears the burden of proof at
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th

The burden shifts to the Commissioner at Step Five to
a

significant

number of

jobs

economy that the claimant can perform.

exist

in the

national

See Yuckert, 482 U.S. at

141-42; Tackett, 180 F.3d at 1098.
At Step One, the ALJ determined that plaintiff has not engaged
in

substantial

August 9,

gainful

2006.

activity

See 20 C.F.R.

since
§§

the

alleged onset

404.1571 et seq.,

date,

416.971 et

seq.; Tr. 24.

At Step Two, the ALJ found that plaintiff's major depressive
disorder,

anxiety,

degenerative

seizures were severe impairments.

disc

disease,

See 20 C.F.R.

and
§§

history

of

404.1520(c),

416.920(c); Tr. 24-25.
At Step Three, the ALJ determined that plaintiff does not have
an impairment or combination of impairments that meet or medically
equal

any

listed

impairment.

See

20

C.F.R.

§§

404.1520(d),

404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 25-26.

4 - OPINION AND ORDER

The ALJ found
capacity

(RFC)

that

to

plaintiff has

perform

light

work,

the

residual

but

can

functional

only

perform

unskilled work with no public interaction; can only occasionally
crawl, climb, crouch, or kneel; cannot perform fine precision work;
and

cannot: work

in

environments

with

exposure

to

heights, moving machinery, or commercial driving.
At

Step

Four,

the ALJ found

that

Tr. 26-35.

plaintiff

perform her past relevant work as a Caregiver.

unprotected

is

unable

to

See 20 C.F.R.

§§

404.1565, 416.965; Tr. 35.
At Step Five,
numbers

in

the

the ALJ found that jobs exist in significant

national

economy

that

plaintiff

can

perform,

including Microfilm Document Preparer, Conveyor Line Bakery Worker,
and

Mail

Clerk.

See

20

C.F.R.

§§

404.1569,

404.1569(a),

404.1568(d), 416.969, 416.969(a); Tr. 35-37.
Accordingly,

the ALJ found that plaintiff was not disabled

within the meaning of the Act.
ISSUES ON REVIEW

Plaintiff raises eight issues on appeal.

First,

plaintiff

asserts that the ALJ erred in failing to reopen plaintiff's 2007
application.

Second,

plaintiff argues that the ALJ erroneously

omitted plaintiff's L5 radiculopathy as a severe impairment at Step
Two.
her

Third, plaintiff claims that the ALJ erroneously discredited
testimony.

Fourth,

plaintiff

argues

that

the

inadequate reasons for rejecting the opinion of Ms.
5 - OPINION AND ORDER

ALJ

cited

Slind-Hull.

Fifth, plaintiff maintains that the ALJ erroneously discredited Ms.
Elstun and Mr. Monroe's lay testimony without discussion.
plaintiff

asserts

that

the

ALJ failed

to

properly

Sixth,

consider

disability finding by a Vocational Rehabilitation Servcies
official.

Seventh,

a

(VRS)

plaintiff claims the ALJ made miscellaneous

errors in formulating the RFC.

Finally, plaintiff maintains that

the ALJ failed to carry his burden at Step Five because two of the
three jobs cited by the ALJ require a General Education Development
(GED) level beyond plaintiff's capacity.
STANDARD OF REVIEW

The

court must

affirm the

Commissioner's

decision

if the

Commissioner applied proper legal standards and the findings are
supported by substantial evidence in the record.
405 (g); Andrews v.

Shalala,

53 F. 3d 1035, 1039

42

U.S. C.

(9th Cir.

§

1995).

"Substantial evidence means more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
court must

weigh

all

of the

evidence,

whether

detracts from the Commissioner's decision.
807 F.2d 771, 772 (9th Cir. 1986).
to

more

than

one

rational

decision must be upheld.

supports

The
or

Martinez v. Heckler,

If the evidence is susceptible

interpretation,

Andrews,

it

Id.

the

Commissioner's

53 F.3d at 1039-40.

If the

evidence supports the Commissioner's conclusion, the Commissioner
must be affirmed;

"the court may not substitute its judgment for

6 - OPINION AND ORDER

that of the Commissioner."

Edlund v. Massanari,

253 F.3d 1152,

1156 (9th Cir. 2001).
DISCUSSION
I.

Reopening of the 2007 Application

Plaintiff first argues that the ALJ erred in failing to reopen
her 2007 disability application.

This argument is without merit.

In plaintiff's prior application,

she alleged an onset date of

August 12, 2006 - three days after the alleged onset date in the
instant application.

In adjudicating the instant application, the

ALJ considered evidence and determined whether plaintiff qualified
for disability during a period dating back to the alleged onset
dates of the instant application, which preceded that of the prior
application.

Thus, the ALJ de facto reopened the prior application

because she adjudicated plaintiff's disability through the alleged
onset

date of the prior application,

and did

not

ascribe

any

preclusive effect to the denial of plaintiff's prior application.
See Lester v. Chater, 81 F. 3d 821, 827

(9th Cir. 1995).

The ALJ

did not err in failing to reopen plaintiff's prior application.
II.

Consideration of LS Radiculopathy at Step Two

Plaintiff

next

submits

that

the

ALJ erred

in

failing

to

consider plaintiff's L5 radiculopathy as a severe impairment at
Step Two.
included

This argument is also without merit.
plaintiff's

"degenerative

impairment at Step Two.
7 - OPINION AND ORDER

disc

The ALJ explicitly.

diseasen

as

a

severe

Degenerative disc disease is a general

term used to describe degenerative changes in spinal discs that can
result in herniated discs and pressure on spinal nerve roots.
3 Robert

K.

Ausman

&

Dean E.

Edition§§ 4:1, 4:38 (1989).

Snyder,

Medical

See

Library Lawyers

Thus, the inclusion of degenerative

disc disease at Step Two was sufficient to incorporate plaintiff's
back and associated leg conditions,
into the disability analysis.
back

and

associated

leg

incorporated into the RFC,

including L5 radiculopathy,

Moreover,

I note that plaintiff's

impairments

were

considered

and

rendering any error in this respect

harmless. See Lewis v. Astrue, 498 F. 3d 909, 911 (9th Cir. 2007).
III. Consideration of Record Evidence
A.

Plaintiff's Testimony

In deciding whether to accept subjective symptom testimony, an
ALJ must perform two stages of analysis.
416.929.
evidence

First,
of an

the

claimant

underlying

must

produce

impairment

that

expected to produce the symptoms alleged.
F. 3d 1273, 1281-82 (9th Cir. 1996).

20 C.F.R. §§ 404.1529,
objective

medical

could 10easonably be
Smolen v.

Chater,

80

Second, absent a finding of

malingering, the ALJ can reject the claimant's testimony about the
severity of her symptoms only by offering specific,
convincing reasons for doing so.

clear and

Id. at 1281.

If an ALJ finds that the claimant's testimony regarding her
subjective symptoms is ·unreliable, the "ALJ must make a credibility
determination

citing

8 - OPINION AND ORDER

the

reasons

why

the

testimony

is

unpersuasive."
599

(9th Cir.

Morgan v. Comm'r Soc. Sec. Admin.,
In doing so,

1999).

169 F.3d 595,

the ALJ must identify what

testimony is credible and what testimony undermines the claimant's
complaints, and make "findings sufficiently specific to permit the
court to conclude that the ALJ did not arbitrarily discredit [the]
claimant's testimony."
Cir.

2002).

The

Thomas v. Barnhart, 278 F.3d 947, 958 (9th

ALJ

credibility evaluation

may

rely

upon

in weighing the

ordinary

techniques

claimant's

of

credibility.

Tommasetti v. Astrue, 533 F. 3d 1035, 1039 (9th Cir. 2008).
At the hearing, plaintiff testified that she stopped working
as a caregiver because she began experiencing pain and swelling in
her legs, and that her legs would "give out" without warning.
51.

Plaintiff reported that

Tr.

she has no trouble with personal

needs, including bathing, dressing herself, and does not have any
problems driving.

Tr. 54.

Plaintiff reported that she can cook

simple meals and do dishes, although she must take breaks.

Tr. 54.

Plaintiff stated that her mother checks in with her daily,

and

comes over three times per week to help with plaintiff's children
and around the house.

Tr. 64.

When plaintiff goes to the grocery

store, she reported that somebody accompanies her and she uses a
motorized scooter.

Tr. 55.

Plaintiff stated that she attempted to

take classes at a

community college,

but that she had to stop

because she "[c]ouldn't focus, couldn't keep up."

9 - OPINION AND ORDER

Tr. 69.

Plaintiff testified that she could lift a gallon of milk if it
was level with her and she did not have to carry it any distance,
but could not lift a 24-pack of soda.

Id.

Plaintiff testified

that she can only walk 20 feet before requiring rest because her
legs go numb, and that she can stand for 10 minutes and sit for 15
minutes before requiring a change in position.

Tr. 56.

Plaintiff

noted that hand tremors cause her to have difficulty holding items,
such as a fork or pencil, in her hands.
As to her mental limitations,

Tr. 57.

plaintiff testified that her

depression and anxiety cause her difficulty motivating to begin a
day or complete household chores, and that she becomes overwhelmed
in a group setting and has

flashbacks

to past abuse.

Tr.

59.

Plaintiff reported that her medications interfere with her memory,
and that she has difficulty retaining information that she reads.
Tr. 60-61.

Plaintiff testified that her mental health conditions

interfere with her sleep, as she only sleeps one to three hours per
night because her mind "seems to like to race."

Tr.

70.

As to

drug use, plaintiff reported that until October 2010 she smoked "a
bowl

(of

marijuana]

a

night."

Tr.

61-62.

With

respect

to

assistive devices, plaintiff testified that she has a walker with
a seat on it that she originally procured herself, but was later
prescribed by a doctor.

Tr.

62.

As a child, plaintiff reported

that she suffered petit mal seizures which plaintiff suggested she

10 - OPINION AND ORDER

still experienced,

causing her to "lose track of time and space

Tr. 63.

out."

In her most recent Adult Function Report,

plaintiff stated

that she makes breakfast, lunch, and dinner for her children, goes
to

the

doctor

therapist,

once

Vivian

per

week

Bliss,

for

for

an

injection,

posttraumatic

anxiety, and "manic depression."

Tr. 229.

and

sees

stress

her

disorder,

Plaintiff reported that

she must climb or descend stairs twelve times per day because she
lives in a townhouse, and that she uses a walker which "seems to
help some," but still has difficulty cleaning the house,
dishes,

laundry,

shopping,

doing

Id.

and picking up her son.

As to

personal care, plaintiff reported that she requires her daughter's
assistance to get dressed,

and must hold onto

walker" to

Plaintiff reported she has difficulty

dress herself.

Tr.

230.

getting out

the

bath tub,

of

[her]

often needs

her daughter's

help

washing her hair, can only shave her legs without pain if she is
sitting in the bath, and can't bake or cook a regular meal.

Id.

Plaintiff additionally reported requiring the help of her children
to get to the bathroom.

Tr. 231.

Plaintiff checked that her conditions affect her abilities to
lift, squat, bend, stand, reach, walk, sit,
remember,

complete

tasks,

concentrate,

kneel,

climb stairs,

understand,

instructions, use her hands, and get along with others.

follow
Tr. 234.

Plaintiff reported that her poor memory interferes with her ability
11 - OPINION AND ORDER

to follow spoken instructions.

Id.

Plaintiff reported that if she
[her] brain shuts down."

is under "any amount of stress

Tr.

235.
As to activities outside the home, plaintiff reported that she
can drive, "[b] ut only short distances, otherwise [her] back starts
hurting, tingling, and feeling like [she is] going to fall because
[her] legs are weak."
her children,

Tr. 232.

she stated it can take " [six]

Plaintiff wrote
horseback riding,

that

she used to

ALJ

hours or so."

enjoy swimming,

camping,

Id.
and

but it has been difficult to do those things

since her conditions began.
The

When plaintiff goes shopping with

discredited

Tr. 233.
plaintiff's

testimony

because

it

was

inconsistent with activities she reported elsewhere in the record,
plaintiff exhibited drug-seeking behavior, there is evidence in the
record of plaintiff exaggerating her symptoms, and the extent of
plaintiff's alleged physical
objective medical evidence.

limitations were not

supported by

I conclude that these reasons together

amount to clear and convincing reasons for rejecting plaintiff's
testimony.
The ALJ reasonably found that plaintiff's allegations of very
significant limitations in her daily functioning were inconsistent
with

other

reports

throughout

the

record.

As

the ALJ noted,

plaintiff reported several times throughout the record that she was
working out at a gym.
12 - OPINION AND ORDER

Tr.

501,

505,

507,

631,

1080.

The ALJ

reasonably

found

that

this

was

inconsistent

with

the

significant physical limitations alleged by plaintiff.
on February 23,

2010,

very

Moreover,

plaintiff reported that she hurt her hand

when "she was chopping wood today and the ax handle hit her hand."
Tr.
chop

929.

The ALJ reasonably found that plaintiff using an ax to

wood

was

inconsistent

with

plaintiff's

significant lifting and handling limitations.

testimony

of

The ALJ reasonably

discredited plaintiff's testimony in part on this basis.
The ALJ also properly found that plaintiff exhibited drugseeking behavior and discredited her testimony on that basis.
ALJ may discredit

a

claimant's

testimony because

demonstrated drug-seeking behavior.

the

An

claimant

Edlund, 253 F.3d at 1157.

The

ALJ specifically noted that on October 26, 2009, plaintiff reported
that her prescription narcotics were helping her symptoms,
requested an increased dose.

Tr. 734.

but

Less than one month later,

however, she was cited for delivery of a controlled substance as a
result of selling her prescribed oxycodone.

Tr. 1007.

As the ALJ

also noted, plaintiff was terminated from Ms. Slind-Hull's practice
because she
properly

violate~

cited

her pain contract.

plaintiff's

Tr. 943.

therapist's

Finally, the ALJ

repeated

notes

that

plaintiff "appears to be self medicating for emotions not pain and
anxiety."

Tr.

1139,

1143,

1144,

1150,

1151,

1152.

The

ALJ

reasonably cited plaintiff's demonstration of drug-seeking behavior
as a reason to discredit her testimony.
13 - OPINION AND ORDER

The

ALJ' s

rejection

of

plaintiff's

testimony because

the

record contains evidence of plaintiff exaggerating her symptoms is
also

amply

instances

supported by
that

exaggeration.

she

the

record.

reasonably

The

ALJ cited numerous

concluded

suggest

symptom

On August 27, 2006, plaintiff reported to emergency

room physicians that a'she had blown out her disk,'" despite, in
reality, only having aa very small protrusion with no evidence of
any

nerve

impingement."

evaluation,

Tr.

490.

At

a

January

plaintiff reported symptoms that Paul S.

29,

2008

Stoltzfus,

Psy.D., characterized as agreatly exaggerated in contrast to her
presentation during the
Stoltzfus

interview."

noted during an examination

Tr.

427.

the

Similarly,

following

Dr.

year that

plaintiff aappeared to be significantly exaggerating her symptoms"
after completing the same questionnaire she had the previous year.
Tr. 667.
The ALJ also noted that plaintiff sought and received the
prescription of a walker without any medical need for one.
a

physical

plaintiff's

examination,
walker was

objective exam findings."

David

not

Stenstrom,

M.D.,

noted

After
that

a [m] edically necessary based on an

Tr. 680.

Moreover, on November 9, 2007,

Steve X. Truong, M.D., noted that despite presenting with a walker,
plaintiff was aable to take several steps without the use of her
walker."

Tr. 416.

Moreover, as discussed in further detail below,

plaintiff lacked objective findings that would suggest impairment
14 - OPINION AND ORDER

to the extent of requiring the use of a walker,
inconsistency in her gait.
2009

physical

and displayed

Finally, the ALJ noted that after her

examination,

Dr.

Stenstrom

concluded

that

"no

physical diagnoses are present with this claimantn and found no
physical functional limitations.

Tr. 682.

The ALJ also cited plaintiff's inconsistency in testing as
evidence of exaggeration of symptoms.

Indeed, as the ALJ.noted,

plaintiff demonstrated variable gait characteristics,
presenting with an antalgic gait,

sometimes

sometimes with a normal gait,

sometimes with the assistance of a walker, and sometimes under her
own power.
gait),

399

cane),

572

Tr.

h_g_,_,

333

(normal gait) ,

367

(slightly antalgic

(ambulating without any difficulty without walker or
(gait

(antalgic

gait

Moreover,

as

was

"stooped and antalgic bilaterallyn),

bilaterally),
the

ALJ

892

also

(balance

noted,

and

gait

plaintiff

inconsistent results on the straight leg raise test.

739

intact).

demonstrated
Compare Tr.

366, 376, 378, 387, 399, 432 (positive bilaterally), with Tr. 362,
367, 368, 369, 415, 419, 441, 593 (negative bilaterally), and Tr.
372, 373 (positive on right only) .
Finally,

the

ALJ

also

noted

that

plaintiff

demonstrated

For example, in the

inconsistent mental health testing results.

2008 examination with Dr. Stoltzfus, plaintiff correctly spelled
"worldn backwards and successfully calculated "seven times eightn
and

"two

times

twenty

15 - OPINION AND ORDER

four,n

whereas

in

the

August,

2009

examination she could not complete any of those tasks.
669.

Tr.

427,

At her October, 2009 physical evaluation with Dr. Stenstrom,

plaintiff successfully spelled "world" both forward and backward,
successfully calculated "five

times

three,"

but

unsuccessfully

calculated "twenty-six minus seven," and "refused" to calculate
"twenty-eight divided by two" and "twenty-nine plus eleven."
679.

Tr.

One month later, in November of 2009, plaintiff again failed

to spell "world" backwards, despite successfully doing so in August
and October of that year.

Tr. 708.

The ALJ reasonably discredited

plaintiff's testimony because there was evidence she exaggerated
her symptoms.
Finally, the ALJ rejected plaintiff's testimony because her
allegations of severe back and associated leg limitations were not
supported

by

objective

testing

in

the

record.

plaintiff's back consistently produced mild findings.
353, 354, 674.

Imaging
L.g_,_,

of
Tr.

A nerve conduction study was "within normal limits

bilaterally," and while a needle EMG study showed "some chronic
denervation in the distal L5 muscles," there was "no evidence of
active denervation."

Tr.

335.

The ALJ reasonably found that

objective medical evidence did not support plaintiff's allegations
of severe back and associated leg symptoms.
above

reasons,

taken together,

constitute clear and convincing

reasons for rejecting plaintiff's testimony.

Ill
16 - OPINION AND ORDER

I conclude that the

B.

Medical Testimony

Citing a series of chart notes and letters to various social
service organizations from Ms. Slind-Hull, plaintiff argues that
the ALJ erroneously rejected Ms. Slind-Hull's "opinion".
472, 572, 714, 723, 724.

See Tr.

None of the letters were submitted for

the purpose of aiding the disability determination.

As an initial

matter, I note that because these record entries were not medical
testimony provided to the Social Security Administration for the
purpose of aiding in the disability determination, the ALJ was not
required to give them any special consideration.

Rather, so long

as the ALJ's decision was supported by substantial evidence in the
record

as

a

whole,

including

Ms.

Slind-Hull's

Commissioner's decision must be affirmed.

I

notes,

the

conclude there is

nothing in the cited entries from Ms. Slind-Hull that deprive the
ALJ's decision of the support of substantial evidence.
Even

if

Ms.

Slind-Hull's

record

entries

were

considered

medical testimony, the ALJ properly weighed such testimony.
nurse

practitioner,

Ms.

Slind-Hull

is

an

"other source"

As a
whose

opinion may be rejected if the ALJ cites reasons germane to the
witness.
1104,

See 20 C.F.R.

1111

(9th Cir.

notes ·because

§

404.1513(d); Molina v. Astrue, 674 F.3d

2012).

they were

The ALJ rejected Ms.

based on

plaintiff's

subjective

reports and were unsupported by objective findings.

17 -OPINION AND ORDER

Slind-Hull' s

Tr. 34.

self-

Indeed, a review of Ms. Slind-Hull's chart notes demonstrates
that she relied extensively on plaintiff's self-reports, which the
ALJ reasonably found unreliable, and were contradicted by objective
Ms.

Notably,

medical findings.

Slind-Hull noted on December 1,

that plaintiff has a history of "severe degenerative disc

2008,

disease," despite imaging in the record that showed, at most, mild
Tr.

degenerative changes.
Hull

prescribed

580.

Moreover,
based

walker

plaintiff's

it appears Ms. Slindon

plaintiff's

self-

reporting, as it was prescribed after plaintiff reported "that she
is afraid at times utilizing her current walker that her legs will
give out and she will
Ms.

rejected

fall."

Slind-Hull's

Tr.

The ALJ reasonably

571-72.

"opinion"

because

it

was

based

on

plaintiff's self-reporting and unsupported by objective medical
evidence.
Lay Testimony

C.

Plaintiff next argues that the ALJ improperly rejected the lay
testimony
discussion.

of

Arvel

Ray

Monroe

and

Jerrie

Lynn

Elstun

•tJithout

Lay testimony regarding a claimant's symptoms or how

an impairment affects her ability to work is competent evidence
that an ALJ must take into account.

Molina, 674 F.3d at 1114.

To

discount lay witness testimony, the ALJ must give reasons that are
germane to the witness.

Id.

The ALJ's failure to discuss the lay witness testimony was
error.

Such error may be harmless, however, if the lay witnesses

18 - OPINION AND ORDER

did not describe any limitations beyond those described by the
and

convincing

reasons"

to

"well-supported,

provided

ALJ

the

plaintiff,

reject

See Molina,

similarly apply to the lay testimony.

that

testimony

plaintiff's

the

and

clear

674 F. 3d at

I conclude that the ALJ's error in failing to discuss the

1122.

lay testimony was harmless.
As the parties agree, the lay testimony was substantively very
Moreover, many of the ALJ's

similar to plaintiff's allegations.

reasons for rejecting plaintiff's testimony apply with equal force
to the lay testimony.
and

leg

limitations

Just as plaintiff's testimony of severe back
was

inconsistent

evidence showing mild impairments,

with

objective

medical

the lay witness testimony of

similar allegations is also contradicted by the objective medical
Similarly,

evidence.

just

as

allegations

plaintiff's

of

significant limitations were belied by her frequent statements that
she exercised at a gym and her report that she injured her hand
chopping wood with an ax, the lay witness allegations are similarly
contradicted by plaintiff's admitted activities.
sufficient reasons to reject the lay testimony.

These reasons are
The ALJ's error in

failing to discuss the lay testimony was harmless.
D.

The Vocational Rehabilitation Services Evaluation

Plaintiff argues that the ALJ erred in failing to expressly
address

the

VRS' s

categorization

of

plaintiff

as

"Most

Significantly Disabled" and its opinion of certain impediments to

19 - OPINION AND ORDER

plaintiff's employment.

Tr. 812-813.

Disability determinations by

other governmental agencies are not binding on the Commissioner,
but "cannot be ignored and must be considered."
available at 2006 WL 2329939, at *6.

SSR 06-03p,

The ALJ "should explain the

consideration given to these decisions" in the opinion.
The

ALJ

clearly

erred

in

considering

the

VRS

Id. at *7.
disability

determination because she failed to explain the consideration it
was given.

I cannot conclude that such error was harmless, as not

all of the findings in the VRS determination were accounted for either incorporated into the RFC or expressly rejected - in the
ALJ's decision.
IV.

Miscellaneous Alleged Errors in the RFC

Plaintiff next argues that the ALJ erred in formulating the
RFC

because

consider

she

improperly

plaintiff's

likely

considered
poor

the

record,

attendance

due

failed
to

to

medical

appointments, improperly limited plaintiff to "unskilled work" in
the vocational hypothetical, and failed to incorporate Step Three
limitations relating to plaintiff's ability to engage in complex
work and concentration, persistence, and pace into the RFC.

These

arguments are without merit.
Plaintiff's argument that the ALJ failed to properly consider
the record is merely a restatement of arguments addressed above,
and does not merit further discussion.

Plaintiff's next argument,

that the ALJ failed to limit plaintiff's work attendance due to

20 - OPINION AND ORDER

There is nothing in the record

medical appointments, is meritless.

indicating plaintiff could not schedule medical appointments during
non-working hours or on non-working days.
argument

Plaintiff's

limited

erroneously

ALJ

the

that

plaintiff to "unskilled work" because such a limitation "has no
in

place

meritless.

is

quantification"

function-by-functio n

the

also

A limitation to "unskilled work" is clearly a valid

finding in an ALJ's determination of the plaintiff's functional
capacity in the workplace, as it is a determination of the degree
of complexity of work the ALJ concludes the claimant can perform. ·
I also reject plaintiff's argument that the ALJ failed to
The

incorporate limitations found at Step Three into the RFC.
limitation

complexity

ALJ's

accommodated by the ALJ' s
the

Moreover,

work.

is

Three

Step

at

reasonably

limitation of plaintiff to unskilled

concentration,

persistence 1

and

pace

limitation found at Step Three is also reasonably accommodated by
the

limitation

unskilled

to

reasonably consistent with the medical
Danielson v.
making

the

persistence,

539 F. 3d 1169,

Astrue,
finding
and

of

pace,

moderate
the

ALJ

such

because

work

limitation

evidence.

1174

See

(9th Cir.

limitations
reasonably

in

is

Stubbs-

2008).

In

concentration,

noted

that

limitation was inconsistently present throughout the record,

such
and

largely based upon plaintiff's occasional presentation with poor
memory.

Tr. 25.

It was reasonable, then, for the ALJ to rely on

21 - OPINION AND ORDER

the limitation to unskilled work, and its necessarily contemplated
simpler tasks,

to accommodate the ALJ' s

Step Three

finding

on

plaintiff's concentration, persistence, and pace limitations.
V.

Step Five Finding

Plaintiff finally argues that the ALJ erred in her Step Five
finding because the ALJ noted at Step Two that plaintiff's severe
impairments "more than minimally impact her ability to engage in
complex work requiring her to follow detailed instructions," yet
found that plaintiff could perform jobs greater than GED Level One.
Plaintiff argues that the Step Two finding was inconsistent with
the Step Five finding because any job at GED Level 2 · or above
requires plaintiff to at least "[a]pply commonsense understanding
to carry out detailed but uninvolved written or oral instructions."
Dictionary of Occupational Titles, App. C
argues,

under the ALJ' s

perform the

III.

§

Step Two finding,

Thus, plaintiff

plaintiff could not

jobs of JVlail Clerk and JVIicrofilm Document Preparer

because they required greater than GED Level One.

I disagree.

The finding that certain abilities are "more than minimally
affected" by the claimant's severe impairments at Step Two is not
equivalent

to

limitations

listed

in

the

RFC.

Any

limitation

plaintiff has in following instructions was adequately accounted
for

by

the

"unskilled

work"

testified, and the ALJ found,

limitation

the

RFC.

The

VE

that each of the jobs cited by the

ALJ qualified as "unskilled work."

22 - OPINION AND ORDER

in

The ALJ properly relied on the

cited jobs to meet the Commissioner's burden at Step Five.
plaintiff were correct, however,

Even if

such error would be harmless as

the 4,347 local and 363,614 national jobs associated with Conveyor
Line Bakery Worker are jobs that exist in significant numbers in
the national

See Barker v.

economy.

Sec' y of Health

Human

&

Servs., 882 F.2d 1474, 1478-79 (9th Cir. 1989); Yelovich v. Colvin,
No.
With

11-36071,
the

2013 WL 3216042,

exception

of

the

at *1

error

in

(9th Cir.

June 27,

consideration

of

2013).
the

VRS

evaluation, the ALJ's Step Five finding was proper.
VI.

Remand

After finding the ALJ erred,
remand

for

benefits.

further

proceedings

this court has discretion to
or

for

immediate

payment

of

Harman v. Apfel, 211 F. 3d 1172, 1178 (9th Cir. 2000).

The issue turns on the utility of further proceedings.

A remand

for an award of benefits is appropriate where there is no useful
purpose to be served by further proceedings or where the record is
fully developed.
The

Ninth Circuit

has

established a

three-part

test

"for

determining when evidence should be credited and an immediate award
of benefits directed."
award of benefits when:

Ill
Ill
Ill
23 - OPINION AND ORDER

Id.

The court should grant an immediate

(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such evidence, (2) there are no
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 were such evidence credited.
Id.

Where it is not clear that

(quoting Smolen, 80 F.3d at 1292).

the ALJ would be required to award benefits were the improperly
rejected evidence credited,

the court has discretion whether to

Connett v. Barnhart, 340 F.3d 871, 876 (9th

credit the evidence.
Cir. 2003).

On this record, there remain outstanding issues to be resolved
and

it

is

plaintiff

not

clear

disabled

if

that
the

the

ALJ would

functional

disability determination were credited.

be

required
in

limitations

to

find

the

VRS

Accordingly, on remand,

pursuant to the Commissioner's regulations, the ALJ must consider
and expressly accept or reject the findings in the VRS disability
determination.
determine

what

If the ALJ accepts the VRS
effect

the

additional VE testimony,
reject

the

VRS

findings,

reasons for doing so.

Ill
Ill
Ill
Ill
Ill
24 - OPINION AND ORDER

findings

have

if necessary.
she

must

on

she must

findings,
the

RFC,

seeking

If the ALJ chooses to

provide

legally

sufficient

CONCLUSION

Based

on

the

foregoing,

the

Commissioner's

decision

is

REVERSED, and this case is REMANDED pursuant to sentence four of 42
U.S.C.

§

405(g) for further administrative proceedings consistent

with this opinion.
IT IS SO ORDERED.
DATED this ~ day of October, 2013.

~4..-4--. ¢ tfrz~

Malcolm F. Marsh
United States District Judge

25 - OPINION AND ORDER