Diller v. Commissioner Social Security Administration

Filing 21

OPINION AND ORDER. Signed on 09/10/2015 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 6:14-cv-01414-MA

ANNE H. DILLER
Plaintiff,

v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
Defendant.
KATHRYN TASSINARI
Harder, Wells, Baron & Manning, P.C.
474 Willamette, Suite 200
Eugene, OR 97401
DREW L. JOHNSON
1700 Valley River Dr.
Eugene, OR 97405
Attorneys for Plaintiff
JANICE E.
Assistant
1000 S.W.
Portland,

HEBERT
United States Attorney
Third Ave., Suite 600
OR 97204

MARTHA A. BODEN
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER

OPINION AND ORDER

MARSH, Judge
Plaintiff Anne H. Diller seeks judicial review of the final
decision

of

application

the
for

Commissioner

of

Supplemental

Social

Security

Security

Income

denying

(SSI)

her

disability

benefits under Title XVI of the Social Security Act, 42 U.S.C.

§§

1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C.
1383 (c) (3).

For

the

reasons

that

follow,

I

affirm

the

§

final

decision of the Commissioner.
FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff protectively filed an application for SSI on March
18, 2010, alleging disability as of March 1, 2006 due to including
but not

limited to:

memory loss;

asthma;

depression;

arthritis in back;

anxiety;

knee problems;

high blood pressure;

plantar

fascitis; and shoulder impingement. Tr. 201.
Plaintiff's

claims

were

denied

initially

and

upon

reconsideration. Plaintiff filed a request for a hearing before an
administrative law judge (ALJ). An ALJ held a hearing on December
12,

2012,

at

which

plaintiff

appeared

with

her

attorney

and

testified. A vocational expert, Mark A. McGowan also appeared at
the hearing and testified. On January 7, 2013, the ALJ issued an
unfavorable

decision.

The

Appeals

Council

denied

plaintiff's

request for review, and therefore, the ALJ's decision became the
final decision of the Commissioner for purposes of review.

2 - OPINION AND ORDER

Born in 1963, plaintiff was 49 years old on the date of the
ALJ' s

unfavorable

decision.

Plaintiff

has

a

General

Education

Degree (GED) and has past relevant work as a waitress.
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, 140 (1987); 20 C.F.R.

§

Bowen v.

416.920. Each step

is potentially dispositive. The claimant bears the burden of proof

Valentine v.

at steps one through four.

Admin., 574 F. 3d 685,

Commissioner Soc.

689 (9th Cir. 2009);

Sec.

Tackett v. Apfel, 180

F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to
the Commissioner to show that the claimant can do other work which
exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161
(9th Cir. 2012).
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since March 18, 2010, her application
date. At step two, the ALJ found that plaintiff had the following
severe impairments: asthma; mild degenerative disc disease of the
lumbar spine;
major

status/post arthroscopy bilateral knees;

depressive

dependence

in

disorder;

remission.

At

marijuana
step

abuse;

three,

the

obesity;

and

amphetamine

ALJ

found

that

plaintiff's impairment or combination of impairments, did not meet
or medically equal a listed impairment.

3 - OPINION AND ORDER

The ALJ assessed plaintiff with a residual functional capacity
(RFC) to light work as defined in 20 C.F.R.
following

limitations.

Plaintiff

can

§

416.967 but with the

lift

twenty

pounds

occasionally and ten pounds frequently and can stand or walk for
six hours in an eight-hour workday and sit for six hours in an
eight-hour workday. Plaintiff cannot perform repetitive pushing or
pulling.

Plaintiff

can

occasionally

stoop,

crawl,

and

climb

ladders, ropes, and scaffolds. Plaintiff should avoid concentrated
exposure to respiratory irritants and hazards, such as dangerous
machinery and unprotected heights. Plaintiff can occasionally reach
overhead with her right upper extremity and has a mild impairment
in her ability to tolerate usual work changes.
At

step

four,

the ALJ found

that

plaintiff

perform her past relevant work. At step five,

is

unable

to

the ALJ concluded

that considering plaintiff's age, education, work experience, and
residual functional capacity, jobs exist in significant numbers in
the national economy that plaintiff can perform, such as photocopy
machine operator,

office helper, and ticket seller. Accordingly,

the ALJ concluded that plaintiff has not been under a disability
under the Social Security Act from March 18, 2010 through the date
of the decision.
ISSUES ON REVIEW

On appeal to this court,
errors were committed:

4 - OPINION AND ORDER

(1)

plaintiff contends the following

the ALJ failed to properly evaluate

plaintiff's credibility;

(2) the ALJ failed to properly evaluate

the medical opinions of treating physician Robert Burton, M.D.; (3)
the ALJ failed to evaluate the opinion of nurse practioner, Marcia
Clark-Harmon;

(4) the ALJ erred in evaluating the RFC; and (5) the

ALJ failed to properly evaluate the lay testimony.
I.

ALJ Did not Err in Evaluating Plaintiff's Credibility
A.

Standards

To

determine

whether

a

claimant's

testimony

regarding

subjective pain or symptoms is credible, an ALJ must perform two
stages of analysis.
stage

is

a

20 C.F.R.

threshold

test

§§

404.12629,

in which

the

416.929.

The first

claimant must

produce

objective medical evidence of an underlying impairment that could
reasonably be expected to produce the symptoms alleged. Molina v.
Astrue, 674 F.3d 1104, 1112 {9th Cir. 2012); Tommasetti v. Astrue,

533 F.3d 1035, 1039

(9th Cir. 2008). At the second stage of the

credibility analysis, absent affirmative evidence of malingering,
the ALJ must provide clear and convincing reasons for discrediting
the claimant's testimony regarding the severity of the symptoms.
Carmickle v.

Commissioner Soc.

Sec.

Admin.,

533 F.3d 1155,

1161

(9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007).
The ALJ must make findings that are sufficiently specific to
permit

the

reviewing

court

to

conclude

that

the

ALJ did

not

arbitrarily discredit the claimant's testimony. Ghanim v. Colvin,
5 - OPINION AND ORDER

763 F.3d
Factors

1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039.
the

ALJ

determinations
claimant's

may

consider

include

treatment

the

history,

when

making

objective
the

such

medical

claimant's

credibility

evidence,

the

daily activities,

inconsistencies in testimony, effectiveness or adverse side effects
of any pain medication, and relevant character evidence. Ghanim,
763 F.3d at 1163; Tommasetti, 533 F.3d at 1039.
B.

Analysis

At the hearing, plaintiff testified that she has no hobbies or
activities and spends her day watching television while laying on
her bed.

Transcript of Record

("Tr.")

(ECF No.

9

&

10), p.

48.

Plaintiff testified that she cares for her nine year old son and
cooks meals for him.

Tr.

49.

Plaintiff also testified that she

experiences pain mostly in her back,

knees,

Plaintiff further

lays down with her knees

testified that

she

and hips.

Tr.

5 6.

propped up to relieve pain in her back. Tr. 57. Plaintiff testified
that she can hear her hips popping when she bends over them. Tr.
60.
In an undated Adult Function Report, plaintiff noted that she
cooks, cleans, completes laundry, and takes care of her son. Tr.
221.

Plaintiff

specifically

household chores,

noted

that

such as dishwashing,

she

performs

limited

vacuuming and laundry in

between resting for periods at a time. Tr. 223, 229-230. Plaintiff
indicated that

she has no problems with personal grooming and

6 - OPINION AND ORDER

prepares her own meals daily. Tr. 223. Plaintiff also noted that
she shops for groceries once a week for 30-60 minutes. Tr. 224.
Plaintiff further noted that she can lift ten pounds but is unable
to squat, bend or kneel. Tr. 226. Plaintiff stated that she can pay
attention

for

several

hours

and

follows

written

and

spoken

instructions very well. Id.
In a Pain & Fatigue Questionnaire, plaintiff noted that she
experiences aching and stabbing pain daily.

Tr.

233.

Plaintiff

indicated that her pain is made worse with any movement or staying
on her feet for a long time.

Plaintiff also noted that she

Id.

requires frequent naps during the day and is active for 30-120
minutes before needing to rest. Id.
In

the

medically

decision,

determinable

the

ALJ

concluded

impairments

that

that
could

plaintiff
reasonably

has
be

expected to produce some symptoms, but that plaintiff's statements
concerning the intensity,

persistence,

and limiting effects of

those symptoms are not entirely credible.
Contrary to plaintiff's assertion,
clear and convincing reasons,

the ALJ provided three

citing specific record evidence,

which undermine his subjective complaints. As discussed below, the
ALJ

also

provided

one

unconvincing

reason

for

discrediting

plaintiff's allegations of pain. However, the other three reasons
adequately support the ALJ's credibility determination.

7 - OPINION AND ORDER

1. inconsistent with objective medical evidence

The ALJ specifically found plaintiff's subjective allegations
of debilitating pain inconsistent with the medical record. Tr. 23.
When the claimant's own medical record undercuts her assertions,
the ALJ may rely on that contradiction to discredit the claimant.
Parra v. Astrue,

481 F.3d 742, 750-51 (9th Cir. 2007); Morgan v.

Commissioner Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999);
Carmickle,

533 F.3d at 1161. The ALJ's findings are supported by

substantial evidence in the record.
In the
imaging as

decision,

the ALJ cited to plaintiff's

inconsistent with
19-20.

For

the

laboratory

severity of plaintiff's pain

allegations.

Tr.

plaintiff's

right

tendinopathy,

early acromioclavicular degenerative joint disease

shoulder

example,

an

revealed

August

2008

MRI

of

mild

inf raspinatus

but no tears. Tr. 19, 626. Orthopaedic treating physician Donald
Pennington, D.O. noted that because the rotator cuff was in good
shape, he was hesitant to recommend surgical intervention. Tr. 377.
Plaintiff's

October

2006

and

January

2009

chest

x-rays

were

negative. Tr. 606, 630. A June 2007 x-ray of plaintiff's wrist was
normal. Tr. 618. Plaintiff's May 2009 bilateral hip x-ray was also
negative. Tr. 761. As the ALJ noted, plaintiff's May 2009 lumbar xray revealed mild degenerative changes throughout her spine. Tr.
20, 763. Plaintiff's November 2011 spirometry test was normal. Tr.
1049.

8 - OPINION AND ORDER

Moreover,
evidence

the ALJ noted that

indicated

relatively

including examinations

from

the majority of the medical

normal

examination

findings,

treating nurse practitioner Marcia

Clark-Harmon. See generally Tr. 375, 377, 479, 494, 498, 505, 535,
664,

554,

779.

neurologist

For

Karen

example,
Dellinger

as

the

M.D.,

ALJ

noted,

documented

in

2009,

normal

a

May

gait,

negative romberg test, and an unremarkable motor examination. Tr.
20, 676. The ALJ also noted that while plaintiff experienced some
limitation

in

the

use

of her

right

shoulder,

a

November

2008

physical therapy note indicated that plaintiff's right shoulder
range

of motion had significantly improved.

Tr.

20,

4 72.

In a

September 2008 treatment note, Ms. Clark-Harmon noted an absence of
joint swelling, erythema, and muscular atrophy; she also documented
intact muscle strength and normal neurological findings. Tr. 494.
As

the

ALJ

noted,

examining

physician,

Todd

J.

Lewis

documented essentially normal findings in a June 2010 examination.
For example, Dr. Lewis noted tenderness without swelling or redness
in plaintiff's right shoulder and full range of motion. Tr. 936,
937. Dr. Lewis also noted full range of motion and intact strength
in the elbows,

wrists,

and hands.

Tr.

937.

He also observed a

normal gait with good balance, some tenderness in the lumbar spine
but no evidence of tender points or fibromyalgia. Tr. 936, 937. Dr.
Lewis documented some limited range of motion in the lumbar spine
but

also

noted

the

9 - OPINION AND ORDER

presence

of

a

Waddell

sign,

superficial

tenderness.
sensation,

Tr.

938. Moreover,

Dr.

Lewis noted intact strength,

and range of motion in plaintiff's hips,

knees,

and

ankles. Tr. 939.
Furthermore,

plaintiff

although

temporary

experienced

limitations prior to left knee surgery, her knee function improved
with

surgery.

Tr.

19.

As

the

ALJ

cited,

a

May

2007

MRI

of

plaintiff's left knee revealed a medial meniscal tear. Tr. 19, 393.
After left knee arthroscopy surgery in May 2007,

Dr.

Pennington

noted in June 2007 that plaintiff's knee was healing "extremely
well" before she fell and was diagnosed with a grade two ligament
strain. Tr.
opined

390,

that

her

384.

However,

medial

in November 2007,

ligament

strain

recommended additional physical therapy.

was

Tr.

Dr.

Pennington

improving

381.

but

In a November

2007 treatment note, Ms. Clark-Harmon noted that plaintiff reported
her knee and wrist pain as resolving and observed that plaintiff
was not wearing her wrist or knee brace during this visit. Tr. 534.
Ms.

Clark-Harmon

observed a

steady gait.

Tr.

535.

In

fact,

a

physical therapy treatment note indicated that plaintiff injured
her right shoulder trying to move a 400 pound couch in December
2007. Tr. 465.
In short,

the ALJ reasonably concluded that the objective

medical evidence in the record is inconsistent with the degree of
plaintiff's subjective symptoms and appropriately discounted her
credibility on this basis.

10 - OPINION AND ORDER

2. symptoms controlled by medications
Next, the ALJ found that plaintiff's medications for pain and
other symptoms have been relatively effective in controlling and
treating these symptoms as a

basis to discredit her testimony.

"Impairments that can be controlled effectively with medication are
not disabling for the purposes of determining eligibility for SSI
benefits." Warre v. Commissioner of Soc. Sec. Admin, 439 F.3d 1001,
1006 (9th Cir. 2006); see also Odle v. Heckler, 707 F.2d 439,

440

(9th Cir. 1983) (affirming a denial of benefits and noting that the
claimant's impairments were responsive to medication).
The medical record supports the ALJ's finding that plaintiff's
symptoms are adequately controlled with medication. For example, as
the ALJ noted, Ms. Clark-Harmon strongly suggested that plaintiff
stop smoking cigarettes and start using her inhalers when plaintiff
experienced an asthma exacerbation. Tr. 20, 475. Indeed, plaintiff
reported that she felt much better with the use of her albuterol
inhaler and no longer experienced shortness of breath. Tr. 479. In
fact, Ms. Clark-Harmon has noted that plaintiff's continued smoking
is the likely cause of her wheezing and exacerbation of her asthma.
Tr.

991.

In August 2008,

plaintiff reported not needing to use

Advair, a medication prescribed to her at the time for treatment of
asthma.

Tr.

4 98.

Ms.

Clark-Harmon

also

noted

that

plaintiff's

diabetes is controlled on medication. Tr. 855, 870, 999.

11 - OPINION AND ORDER

Contrary to plaintiff's assertion, plaintiff's treatment notes
indicate

that

she

is

stable

on

psychiatric

medications.

For

example, as the ALJ noted, Ms. Clark-Harmon has noted at several
visits that plaintiff is "stable on Cymbal ta." Tr. 20, 509, 855,
869.

In

a

January

2012

treatment

note,

plaintiff

expressed

difficulty dealing with the death of her mother, but with respect
to medication,

plaintiff stated that "as far as meds,

I'm fine

where I'm at." Tr. 949. A June 2012 consultative examination noted
that plaintiff's symptoms appear moderately well controlled by her
current medications.
September

2012

Tr.

noted

1178.

that

Treatment

plaintiff

notes

from March and

specifically

requested

no

changes be made to her psychiatric medications. Tr. 1185, 1194. At
a

March

2012

psychotherapy

visit,

plaintiff

stated

that

the

medications are helping and are at the appropriate dose. Tr. 1194.
Although plaintiff stated in her Function Report that the
prescribed medications and treatment do not relieve her pain, the
medical records suggest otherwise. For example, in September 2008,
Ms. Clark-Harmon prescribed Percocet, and plaintiff indicated that
the pain medication relieved her pain and allowed her to care for
her

son.

Tr.

485.

In

March

2012,

plaintiff

noted

80

percent

improvement in pain in her left elbow from pain injections. Tr.
1166.

In April 2009,

plaintiff reported improved right shoulder

range of motion and a reduction in pain due to physical therapy

12 - OPINION AND ORDER

exercises.

Tr.

893. Thus,

I conclude that the ALJ appropriately

discredited plaintiff on this basis.
3. activities of daily living (ADLs)

The ALJ also discounts plaintiff's credibility by finding that
plaintiff's ADLs are inconsistent with her subjective limitations.
For example, the ALJ noted that plaintiff is able to care for her
young son and completed community service work in a kitchen. Tr.
23. The ALJ also noted that plaintiff requested a medical letter in
support of her request for public transportation to transport her
to a jobs program. Id.
As

plaintiff correctly contends,

evidence of plaintiff's

ability

the ALJ mischaracterized

to perform activities

such as

community service. Although plaintiff performed community service,
she

reported

an

increase

in back and

shoulder pain.

Tr.

503.

Although plaintiff requested a letter for transportation to a jobs
program,

there

is

no

evidence

in

the

record

to

suggest

that

plaintiff actually participated in a vocational program for an
extended period of time. Moreover, as plaintiff noted, the ALJ did
not clarify this issue at the hearing.

In terms of her reported

ADLs, plaintiff noted in her Function Report that she performed a
few household chores such as dishwashing and laundry but rested in
between chores.

Tr.

223.

She completes tasks

slowly and takes

frequent naps. Id. Therefore, I conclude that the ALJ's reasoning
on this point is not supported by substantial evidence.

13 - OPINION AND ORDER

4. poor work history

The ALJ cited to plaintiff's poor work history to suggest
plaintiff lacks a propensity to work. Tr. 23. Evidence of a poor
work history which suggests a claimant is not motivated to work is
a proper reason to discredit a claimant's testimony that she is
unable to work.

Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.

2002). As the ALJ correctly noted, plaintiff had no earnings from
2003 until March 2006, her alleged onset date of disability. Tr.
23,

192.

The

ALJ also

noted accurately

that

history prior to 2003 reflects sporadic work.

plaintiff's
Tr.

23,

26,

work
42.

Plaintiff argues that this is an improper reason to discount her
testimony

as

plaintiff

has

a

history of

substance

abuse

that

"likely interfered with her functioning" as well as having given
birth to a child in 2003. Pl. Br.

(ECF No. 14), p. 17. Plaintiff's

theories are entirely unsubstantiated. After careful review of the
record,

I

find no testimony from plaintiff or evidence in the

record indicating that her lack of work was due to the birth of a
child or substance abuse issues. 1
In conclusion, although the ALJ's credibility reasoning does
contain one error, this error does not invalidate the ALJ's overall
adverse credibility finding.

The ALJ's

remaining reasons,

when

taken together, constitute clear and convincing reasons, supported
1

1 am also unconvinced by plaintiff's argument that her
history of substance abuse adequately excuses her poor work
history.
14 - OPINION AND ORDER

by

substantial

evidence

to

discount

plaintiff's

testimony.

Therefore, I conclude that the ALJ' s error is harmless. "So long as
there remains substantial evidence supporting the ALJ' s conclus.ions
on ... credibility and the error does not negate the validity of the
ALJ's ultimate

[credibility]

conclusion,

such

[error]

harmless and does not warrant reversal." Carmickle,

is deemed

533 F. 3d at

1162; Stout v. Commissioner Soc. Sec. Admin., 454 F.3d 1050, 1055
(9th Cir. 2006).
II.

The ALJ Did Not Err in Evaluating Medical Opinions

In general, the opinion of a treating physician is given more
weight than the opinion of an examining physician, and the opinion
of an examining physician is afforded more weight than the opinion
of a

nonexamining physician.
495

Astrue,

physician's
clinical

F.3d

625,

opinion

and

is

632

Ghanim,

(9th

Cir.

well-supported

laboratory

7 63

diagnostic

F. 3d at

2007).
by

1160;

"If

a

medically

techniques

record,
631

acceptable
is

not

[the]

case

[it will be given] controlling weight." Orn, 495 F.3d at

(internal

C.F.R.

v.

treating

and

inconsistent with the other substantial evidence in

Orn

§

quotations

omitted) (alterations

in original);

20

404.1527(c). To reject the uncontroverted opinion of a

treating or examining physician,

the ALJ must present clear and

convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th
Cir. 2005).

15 - OPINION AND QRDER

If a treating or examining physician's opinion is contradicted
by another physician's opinion, it may be rejected by specific and
legitimate reasons. Tonapetyan v. Halter, 242 F.3d 1144, 1148(9th
Cir.

2001). When evaluating conflicting opinions,

an ALJ is not

required to accept an opinion that is not supported by clinical
findings, or is brief or conclusory. Id. at 1149.
Plaintiff argues that the ALJ failed to provide specific and
legitimate
physician

reasons
Robert

for

discounting

Burton,

M.D.

the

Plaintiff

opinion
also

of

argues

treating
that

Dr.

Burton's opinions are well-supported by objective medical evidence
in the record.
Dr. Burton provided two opinions dated April 9, 2012. First,
Dr. Burton provided a Department of Human Services Medical/Mental
Health Work Release form.

In this form,

Dr.

Burton opined that

plaintiff is unable to participate in a job search, an unpaid work
experience, and vocational rehabilitation program. Tr. 1148. Dr.
Burton opined that plaintiff was a good candidate for SSI. Id. Dr.
Burton

further

opined

that

plaintiff's

prognosis

is

poor

for

achieving employment status in her lifetime and assessed that she
needs to stay in bed. Id.
Second,

in an Oregon Department of Human Services Physical

Residual Capacity form, Dr. Burton opined that plaintiff is able to
sit, stand, walk for less than or equal to two hours in an eighthour workday and can only lift or carry up to five pounds.

16 - OPINION AND ORDER

Tr.

1149. Dr. Burton also assessed limitations in pushing and pulling
in the upper and lower extremities, and an inability to kneel. Id.
Because Dr. Burton's opinions were contradicted, 2 the ALJ was
required to provide specific and legitimate reasons,

backed by

substantial evidence, to reject his opinion. Bayliss, 427 F.3d at
1216. In the decision, with respect to the work release form, the
ALJ gave no weight to the opinion because it was conclusory, lacked
any explanation, and provided no qualifications for Dr. Burton. Tr.
22.

With

respect

to the

Physical

RFC

form,

the ALJ gave

this

opinion no weight as well because the opinion was inconsistent with
other

objective

medical

evidence

and

provide

any

rationale for assessing such extreme functional limitations.

Id.

Having carefully reviewed the record,

I

failed

to

conclude that the ALJ's

reasoning is supported by substantial evidence.
First, the ALJ discredited Dr. Burton's opinion in the work
release form because he failed to provide any rationale for his
extreme opinion that plaintiff requires complete bed rest. Tr. 22.
The ALJ also discredited that opinion because it was conclusory.
Tr.

1148.

When evaluating conflicting opinions,

an ALJ is

not

required to accept an opinion that is not supported by clinical
findings, or is brief or conclusory. Tonapetyan, 242 F.3d at 1149;
2

In a June 17, 2009 physical RFC assessment, Martin Kehrli,
a nonexamining physician opined that plaintiff can can lift and
carry ten pounds frequently and 10 pounds occasionally, and sit,
walk, and stand for six hours each in an eight-hour workday. Tr.
678-685.
17 - OPINION AND ORDER

see 20 C.F.R.

§

provides

an

for

416.927(c) (3) ("the better an explanation a source
opinion,

the

more

weight

we

will

give

that

opinion"). Here, with respect to the work release form, Dr. Burton
gave no explanation as to why plaintiff requires complete bed rest.
Tr. 1148.
Moreover, Dr. Burton did not cite to any clinical findings to
support his opinion in the work release form. A careful review of
the medical record indicates that Dr.
once,

April

9,

2012,

the

date

of

Burton examined plaintiff
both

opinions.

Tr.

1156.

Specifically, Dr. Burton noted that plaintiff made an appointment
to have him fill out forms to "be excused from classes intended to
help." Tr. 1156. Dr. Burton's April 9, 2012 examination findings do
not support his opinions. For example, Dr. Burton noted clear lungs
bilaterally, regular heart beat, and normal range of motion in her
hips. Tr. 1156. He also observed clicking in the knees with passive
range of motion. Tr.

1156. Because Dr. Burton did not provide an

explanation for his extreme limitations,

I

find that the ALJ' s

appropriately discredited Dr. Burton's opinion,

especially given

that his own clinical findings do not even support his opinions.
Second,

the

ALJ properly

found

that

Dr.

Burton's

second

opinion, in the form of a physical RFC assessment, was inconsistent
with the objective medical record. Tr. 22, 1149-50. As previously
discussed, plaintiff's x-rays show minimal findings.
a

May

2009

bilateral

18 - OPINION AND ORDER

hip

x-ray

revealed

no

For example,

evidence

of

hip

arthritis or abnormality. Tr. 761. Plaintiff's multiple chest xrays were normal throughout the period at issue. Tr. 606, 618, 630,
767.

A May

2009

x-ray

of

plaintiff's

lumbar

spine

revealed

multilevel degenerative changes throughout the lumbar spine. Tr.
763. Another lumbar x-ray in July 2010 showed moderate degenerative
changes throughout her spine. Tr.

940. As discussed above, after

her May

plaintiff's

2007

left

knee

surgery,

respect to her knees are essentially normal.

examinations
Tr.

465,

with

494,

534,

939.
Here, the medical record does not substantiate the severity of
limitations assessed by Dr. Burton. For example, in July 2010, Dr.
Lewis

noted an essentially normal

examination.

Tr.

936-39.

As

previously discussed, the record contains some examination findings
supporting mild limitations but do not provide support for Dr.
Burton's extreme limitations. See generally Tr. 479, 494, 498, 505,
514,

535,

554,

664,

676,

779. With respect to plaintiff's right

shoulder pain, the ALJ evaluated and discussed medical evidence of
this

impairment

and

properly

assessed

a

limitation

of

only

occasional overhead reaching with her right upper extremity. Tr.
19-20. Although plaintiff insists on a different interpretation of
the

medical

evidence,

I

conclude

that

the

ALJ

made

logical

inferences from the record to support his conclusions. Because the
ALJ's interpretation is rational and is supported by substantial
evidence in the record as a whole, it will not be disturbed.

19 - OPINION AND ORDER

See

e.g., Molina,

674 F.3d at 1111,

(ALJ's findings must be upheld if

they are supported by reasonable inferences drawn from the record) .
Plaintiff further argues that the ALJ erred in giving less
weight to the opinion of a treating physician than to the opinion
of a nonexamining physician. This argument is without merit.
The

opinion of

a

nonexamining physician

cannot by itself

constitute substantial evidence that justifies the rejection of the
opinion or either an examining physician or a treating physician.n
Lester v. Chater,

81 F.3d 821, 831 (9th Cir. 1995). In this case,

the ALJ relied on the opinions of nonexamining physicians,

the

opinion of an examining physician, and objective medical evidence
in the record to determine that plaintiff is capable of a reduced
level of light work.

Tr.

21-22.

In fact,

nonexamining physician

Martin B. Lahr, M.D. cited to the examination findings of Dr. Lewis
as findings of fact supporting his assessment of a reduced light
RFC.

Tr.

86,

88-91.

Nonexamining physician

affirmed

Dr.

Lahr's

RFC

assessment.

Tr.

Neal
102.

Berner,

M. D.,

Moreover,

the

objective medical evidence, as discussed in depth above, supports
the opinions of Drs. Lahr and Berner.
The ALJ also relied on the findings and opinion of examining
physician Douglas A. Smyth, Ph.D. In a June 2012 examination, Dr.
Smyth noted intact

cognition,

short and long term memory,

and

average attention. Tr. 1176. Dr. Smyth also noted a mixed ability
to

perform

calculations,

20 - OPINION AND ORDER

clear

speech,

and

no

evidence

of

hallucationations, delusions, or compulsions. Tr. 1177. Dr. Smyth
diagnosed major depressive disorder recurrent moderate but opined
that

her

symptoms

appear

moderately

well

controlled

with

medication. Tr. 1177-78. Specifically, Dr. Smyth opined only that
plaintiff

has

a

mild

limitation

in

her

ability

to

respond

appropriately to usual work situations and changes in a routine
work setting. Tr. 1182. The ALJ incorporated this opinion in his
RFC finding. Tr. 19, 21.
Finally, as discussed above, the ALJ discussed and cited to
the objective medical record as well as Dr.
findings

in discrediting Dr.

Lewis's examination

Burton's opinions and assessing a

reduced light RFC finding. Tr. 19-21. In summary, I conclude that
the

ALJ

did

not

err

in

evaluating

Dr.

Burton's

opinions

and

provided specific and legitimate reasons backed by substantial
evidence in the record as a whole.
III. The ALJ Did Not Err in Evaluating Ms. Clark-Harmon's opinion

Lay witness testimony as to how a claimant's symptoms affect
her ability to work is competent evidence, which the ALJ must take
into account. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009);

Stout, 454 F.3d at 1053; Nguyen v. Chater, 100 F.3d 1462, 1467 (9th
Cir.

1996).

The ALJ is

required

to account

for

competent

lay

witness testimony, and if it is rejected, provide germane reasons
for doing so. Valentine, 574 F.3d at 694.

21 - OPINION AND ORDER

Plaintiff argues that the ALJ erred his evaluation of Ms.
Clark-Harmon's opinion.

In an April 21,

2012 letter, Ms. Clark-

Harmon opined that plaintiff's chronic pain prevents her from being
very physically active. Tr. 1170. Ms. Clark-Harmon also opined that
plaintiff's depression results in poor concentration and decreased
ability to tolerate stress. Id.
In assessing opinion evidence,

the ALJ considered and gave

"some weight" to the Ms. Clark-Harmon's opinion. Specifically, the
ALJ

cited

to

the

fact

that

Ms.

Clark-Harmon's

opinion

was

inconsistent with her own examination findings and that her opinion
appeared largely based on plaintiff's subjective complaints. Tr.
22.
Contrary to plaintiff's assertion, the ALJ properly evaluated
Ms.

Clark-Harmon's

opinion

and

provided

a

germane

reason

for

according it "some weight." The ALJ found that Ms. Clark-Harmon's
treatment records do not support her opinion.
January 2010 examination,

Ms.

For example,

in a

Clark-Harmon noted that plaintiff

denied feeling any anxiety, depression or suicidal ideation, and
her mood was "very stable on Cymbalta." Tr. 855. In June 2009, Ms.
Clark-Harmon noted a normal mood and affect and normal attention
and concentration. Tr. 883. In a December 2011, Ms. Clark-Harmon
noted that plaintiff scored a

27 out of 30 on a mental status

examination and presented with a normal mood and affect and normal
attention and concentration. Tr. 987. In fact, Ms. Clark-Harmon's

22 - OPINION AND ORDER

mental health treatment notes indicate relatively normal findings.
See generally, Tr. 485, 494, 509, 535, 869, 894, 1164.
In

terms

of

plaintiff's

physical

limitations,

Ms.

Clark-

Harmon' s treatment notes also do not reveal significant clinical
abnormalities consistent with her opinion. For example, in a June
2008 examination, Ms. Clark-Harmon observed pain to palpation in
plaintiff's

right

shoulder with a marked decrease

in

range

of

motion but intact sensation and circulation. Tr. 505. By September
2008,

Ms.

Clark-Harmon

noted

5/5

muscle

strength

throughout

plaintiff's body, an absence of joint swelling or muscular atrophy,
a lack of edema, and no focal deficits. Tr.

494.

In a June 2009

examination, Ms. Clark-Harmon noted a steady gait and a congested
cough

with

relaxed

respirations.

Tr.

883.

In

an

April

2009

examination, Ms. Clark-Harmon noted a steady gait, mild tenderness
across plaintiff's lower back, tenderness in the hips bilaterally
and good range of motion, sensation and circulation. Tr. 894. To
the extent that Ms. Clark-Harmon's physical findings support some
limitations, the ALJ's finding of a reduced level of light work,
including only occasional reaching overhead with the right shoulder
and

avoiding

respiratory irritants,

adequately addresses

these

limitations. See generally, Tr. 479, 509, 514, 534, 990, 997. Thus,
I find that the ALJ's rationale that Ms. Clark-Harmon's opinion was
inconsistent

with

her

discredit her opinion.

23 - OPINION AND ORDER

treatment

notes

is

a

germane

reason

to

While the ALJ is only required to provide one germane reason
for discrediting lay testimony, here, the ALJ also discredited Ms.
Clark-Harmon's
plaintiff's

opinion

subjective

because

it

allegations.

appears
It

is

largely

based

well-settled

that

on
a

physician's opinion premised upon a claimant's properly discounted
subjective symptoms and limitations may be disregarded.
Commissioner of Soc.

Sec.

Admin.,

2009); Fair v. Bowen, 885 F.2d 597,

554 F. 3d 1219, 1228

Bray v.

(9th Cir.

605 (9th Cir. 1989); Morgan,

169 F.3d at 602.
As the ALJ noted, Ms. Clark-Harmon's opinion letter indicates
that plaintiff's chronic pain limits her ability to be physically
active. Tr. 1170. As discussed above, the ALJ properly considered
and discredited the severity of plaintiff's pain allegations to the
extent they conflict with the RFC finding. Tr. 22, 23. To be sure,
Ms. Clark-Harmon did not provide clinical findings to support her
opinion

that

plaintiff's

pain

prevents

her

from

engaging

in

physical activity.

In light of plaintiff's negative credibility

determination,

ALJ properly discredited Ms.

opinion

to

the

the

extent

that

it

relies

on

Clark-Harmon's

plaintiff's

pain

complaints.
Finally, while I acknowledge plaintiff's argument that the ALJ
appears

to

question Ms.

Clark-Harmon's

motives

without

actual

evidence in the record to support such an allegation, I find that
this is a harmless error. In the decision, the ALJ appears to give

24 - OPINION AND ORDER

less weight to Ms. Clark-Harmon's opinion because she might have
sympathized with plaintiff or felt pressured to provide an opinion
assessing limitations consistent with a finding of disability. Tr.
22. Plaintiff is correct in noting that the record does not support
the ALJ's assertions regarding Ms. Clark-Harmon's motivations in
providing an opinion. Nevertheless, because the ALJ provided two
other germane reasons to discredit Ms. Clark-Harmon's opinion, this

See Burch v. Barnhart, 400 F.3d 676, 679 (9th

error is harmless.

Cir. 2005) ("A decision of the ALJ will not be reversed for errors
that are harmless.").
Accordingly, as discussed above, the ALJ provided two germane
reasons,

supported

by

substantial

evidence

for

rejecting

the

opinion of Ms. Clark-Harmon. Bayliss, 427 F.3d at 1218.
IV.

The ALJ Did Not Err in Assessing the RFC

Plaintiff

argues

that

the

ALJ

failed

to

incorporate

his

finding of a moderate limitation in concentration, persistence, or
pace in his RFC finding.

Plaintiff further argues that the ALJ

failed to find a limitation to simple, routine work. I disagree.
An

ALJ' s

supported

by

consistent
testimony.
Cir.

2008);

RFC

need

substantial

with

the

only

incorporate

evidence

restrictions

in

427

required to identify specific,

25 - OPINION AND ORDER

record

identified

Stubbs-Danielson v. Astrue,
see Bayliss,

the

credible

F. 3d at

in

limitations
and
the

539 F.3d 1169,
1217,

must

be

medical

1174

(9th

(the ALJ is

only

credible limitations in the RFC;

"[p] reparing a function-by-function analysis for medical conditions
or impairments that the ALJ found neither credible nor supported by
the record is unnecessary") .
Plaintiff misinterprets the ALJ's "paragraph B" findings. At
step three, the ALJ found the following ''paragraph B"

criteri~

to

assess whether plaintiff met any 12.00 mental impairment listing:
mild

limitation

social

in activities

functioning

and

a

of daily

moderate

living and maintaining

limitation

in

maintaining

concentration, persistence, and pace. Tr. 16-18.
As the ALJ correctly noted, the ''paragraph B'' criteria ''are
not an RFC assessment but are used to rate the severity of mental
impairment(s) at steps two and three of the sequential evaluation
process. The mental RFC assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment."
Tr.

18;

Social Security Ruling

(SSR)

96-8p,

1996 WL 374184,

*4

(July 2, 1996).
In this case,
simple,
("[A]n

routine
ALJ's

the record does not support a

work.

See Stubbs-Danielson,

assessment

of

a

claimant

539

limitation to
F. 3d at

adequately

1174,

captures

restrictions related to concentration, persistence, or pace where
the assessment is consistent with restrictions identified in the
medical testimony."). As discussed above, the medical record does
not

provide

evidence

of

significant

mental

limitations.

For

example, Rob Nebeker, M.D., noted in a January 2012 that plaintiff

26 - OPINION AND ORDER

has a linear thought process and presented with a bright affect
with mild constriction. Tr. 949. In October 2012, Dr. Nebeker noted
a

linear

thought

process

with

a

pleasant

and

cooperative

appearance. Tr. 1185. Dr. Nebeker noted that plaintiff requested
that no changes to her medication be made. Id. Moreover, plaintiff
failed to attend psychotherapy sessions for six months. Tr. 1198.
The ALJ appears to adopt Dr. Smyth's opinion that plaintiff has a
mild limitation in her ability to respond appropriately to usual
work situations and changes in a routine work setting,
supported by substantial evidence.

Tr.

19,

which is

1182. To be sure,

no

physician assessed a limitation to simple, routine work. Thus, the
ALJ was not required to adopt his finding of a moderate limitation
in concentration, persistence, and pace at step three into the RFC
finding to the extent that the record is inconsistent with such a
finding.
Even assuming arguendo that plaintiff is limited to simple,
routine work as plaintiff asserts, the ALJ's error is harmless. The
ALJ identified two jobs at step five consistent with a limitation
to simple, routine work that plaintiff is able to perform. At step
five, the ALJ found that given the limitations in the RFC finding,
plaintiff
operator,

is

able

to

perform

other

work:

Dictionary of Occupational Titles

photocopy
(DOT)

machine

§ 207.685-014;

office helper, DOT§ 239.567-010; ticket seller, DOT§ 211.467-030.

Dictionary of Occupational Titles (DOT),

27 - OPINION AND ORDER

1991 WL 645958; Tr.

25.

All three jobs require a skill vocational preparation (SVP) level
of two. However, the photocopy machine operator and office helper
jobs require a

level two reasoning while the ticket seller job

requires a level three reasoning. 3
The Ninth Circuit has

recently held that a

limitation to

simple routine work or simple repetitive tasks is consistent with
jobs with a level two reasoning rather than level three reasoning.
Zavalin v.

Colvin,

778 F.3d 842,

847

(9th Cir.

2015);

see also

Rounds v. Commissioner of Soc. Sec. Admin., No. 13-35505, 2015 WL

4620150, *5 note 6 (9th Cir. Aug. 4, 2015)
of panels of this Court and opinions
circuits have concluded that an RFC

("Unpublished decisions

from

some of our

limitation to

sister

"simple"

or

"repetitive" tasks is consistent with Level Two reasoning.").
With a limitation to simple routine tasks,

plaintiff could

still perform the photocopy machine operator job and office helper
job because both

jobs require

level two reasoning.

4

Thus,

even

3

The DOT describes the requirements including reasoning
ability required to perform the job from Level 1 (which requires
the least reasoning ability) to Level 6 (which requires the
most). See DOT, App. C, 1991 WL 688702 (4th ed. 1991); see also
Zavalin, 778 F.3d at 846.
4

The ALJ found both jobs exist in significant numbers in the
national economy. Specifically, the ALJ found that the photocopy
machine operator job has 55,000 jobs nationally and 800 jobs in
Oregon and the office helper job has 165,000 jobs nationally and
1,800 jobs in Oregon. Tr. 25. Compare Beltran v. Astrue, 700 F.3d
386, 389-390 (9th Cir. 2012) (holding that 135 jobs regionally
and 1,680 jobs nationally did not constitute a significant number
of jobs that plaintiff could perform) with Moncada v. Chater, 60
F.3d 521, 524 (9th Cir. 1995) (holding that 2,300 jobs in San
28 - OPINION AND ORDER

adopting plaintiff's argument,

the ALJ's error is harmless.

Stout, 454 F.3d at 1055 (9th Cir.2006)

if

it

is

inconsequential

to

the

See

(an ALJ's error is harmless
ultimate

nondisability

determination) .
Likewise, plaintiff challenges the ALJ's hypothetical to the
VE solely on the basis that the ALJ failed to incorporate his
finding of a
persistence,

moderate
and pace

previously discussed,

limitation in maintaining concentration,
in the hypothetical posed to the VE.
even if the RFC included a

As

limitation to

simple, routine work, the ALJ identified two jobs that plaintiff
could perform. Thus, plaintiff's argument lacks merit.
Aside from the alleged error regarding a limitation to simple,
routine work, I have not identified any error committed by the ALJ
and therefore, the hypothetical posed to the VE contained all the
limitations deemed credible by the ALJ and supported by substantial
evidence in the record. Accordingly, the ALJ could rely upon the VE
testimony. Valentine,

574 F.3d at 694; Stubbs-Danielson, 539 F.3d

at 1175-76.

Diego County and 64,000 jobs nationally constitute a significant
number of jobs that plaintiff could perform) and Mitchell v.
Colvin, No. 13-35059, 2014 WL 3866458, at *2 (9th Cir. Aug. 7,
2014) (finding that 1,300 jobs regionally and 41,000 nationally
constitutes a significant number of jobs).

29 - OPINION AND ORDER

V.

The ALJ Did Not Commit Reversible Error in Assessing Lay
Testimony

The ALJ is

required to account

for

competent

lay witness

testimony, and if it is rejected, provide germane reasons for doing
so. Valentine, 574 F.3d at 694. In an April 12, 2012 letter, Debra
Weygandt,

plaintiff's

friend,

provided

a

letter

describing

plaintiff's symptoms. Tr. 270. Ms. Weygandt noted that plaintiff
can barely move

most

days

due

to

her

pain.

Id.

Ms.

Weygandt

indicated that plaintiff can perform chores slowly with significant
breaks to rest in between each chore. Id. Ms. Weygandt also noted
that plaintiff cannot play with her son because of her pain. Tr.
271.
In the instant action, plaintiff argues that the ALJ committed
a reversible error because he failed to discuss and credit the lay
witness testimony of Ms. Weygandt. I disagree.
Ms. Weygandt's testimony adds no new allegations on behalf of
plaintiff. Failure to comment on lay testimony is harmless "[w] here
lay witness testimony does not describe any limitations not already
described by the claimant, and the ALJ's well supported reasons for
rejecting the claimant's testimony apply equally well to the lay
witness

testimony."

Molina,

674,

F. 3d at

1117.

Ms.

Weygandt' s

testimony is similar to that of plaintiff, including allegations of
pain, a need to lay down for significant portions of the day, and
difficulty walking and standing. As discussed above, the ALJ gave
three

convincing reasons,

30 - OPINION AND ORDER

supported by substantial evidence

to

discount plaintiff's testimony. Specifically, the ALJ found that
plaintiff's allegations are inconsistent with the medical record,
and this reason is equally applicable to Ms. Weygandt's testimony.
Thus,

the

ALJ's

error

in

failing

to

discuss

testimony is harmless. See Burch, 400 F.3d at 679,

Ms.

Weygandt's

("A decision of

the ALJ will not be reversed for errors that are harmless.").
CONCLUSION

For

the

reasons

decision is AFFIRMED.

stated

above,

the

Commissioner's

final

This action is DISMISSED.

IT IS SO ORDERED.
DATED this

/<J

day of SEPTEMBER, 2015.

Malcolm F. Marsh
United States District Judge

31 - OPINION AND ORDER