Garrett v. Commissioner Social Security Administration
Filing
19
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 06/14/2016 by Judge Anna J. Brown. See attached 23 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JENNIFER JOANNE GARRETT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
KATHRYN TASSINARI
DREW L. JOHNSON
Drew L. Johnson, P.C.
Eugene, OR 97401
(541) 434-6466
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1011
1 - OPINION AND ORDER
6:15-CV-00949-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
THOMAS M. ELSBERRY
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104-7075
(206) 615-2112
Attorneys for Defendant
BROWN, Judge.
Plaintiff Jennifer Joanne Garrett seeks judicial review of a
final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's application for
Disability Insurance Benefits (DIB) under Title II of the Social
Security Act (Act) and for Supplemental Security Income under
Title XVI of the Act.
This Court has jurisdiction to review the
Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
Following a review of the record, the Court AFFIRMS the
decision of the Commissioner and DISMISSES this matter.
ADMINISTRATIVE HISTORY
Plaintiff protectively filed her applications on August 16,
2011, and alleged a disability onset date of September 2, 2006.
Tr. 205-12.1
The applications were denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a
1
Citations to the official transcript of record filed by
the Commissioner on October 20, 2015, are referred to as "Tr."
2 - OPINION AND ORDER
hearing on October 1, 2013.
Tr. 26-63.
was represented by an attorney.
At the hearing Plaintiff
Plaintiff and a vocational
expert (VE) testified.
The ALJ issued a decision on October 18, 2013, in which he
found Plaintiff is not disabled.
Tr. 7-25.
That decision became
the final decision of the Commissioner on April 6, 2015, when the
Appeals Council denied Plaintiff's request for review.
Tr 1-4.
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
On June 1, 2015, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner’s decision.
BACKGROUND
Plaintiff was born on November 7, 1977, and was 35 years old
at the time of the hearing before the ALJ.
She completed high
school and was in special education throughout high school.
She
has past relevant work experience as a grocery bagger, a grocery
clerk, and an assistant manager.
Tr. 57.
Plaintiff alleges disability due to “mental illness,
thyroid, blood disorder, fibromyalgia, anxiety disorder, panic
disorder, ADHD, PTSD, blood disorder, iron deficiency, thyroid,
depression, wrist and hand injury, headaches, [and] chronic
fatigue.”
Tr. 238.
3 - OPINION AND ORDER
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate her
inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months."
§ 423(d)(1)(A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).
42
See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
It is more than a mere scintilla [of evidence]
but less than a preponderance.
at 690).
4 - OPINION AND ORDER
Id. (citing Valentine, 574 F.3d
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I).
See
also Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.
2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
See also Keyser, 648
5 - OPINION AND ORDER
F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
F.3d at 724.
20 C.F.R.
See also Keyser, 648
The criteria for the listed impairments, known as
Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§§ 404.1520(e) 416.920(e).
96-8p.
20 C.F.R.
See also Social Security Ruling (SSR)
“A 'regular and continuing basis' means 8 hours a day,
for 5 days a week, or an equivalent schedule."
SSR 96-8p, at *1.
In other words, the Social Security Act does not require complete
incapacity to be disabled.
Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
6 - OPINION AND ORDER
20 C.F.R. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a)(4)(v).
20 C.F.R. §§ 404.1520(a)(4)(v),
See also Keyser, 648 F.3d at 724-25.
Here the
burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.
Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
Cir. 2010).
The Commissioner may satisfy this burden through the
testimony of a VE or by reference to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.
If the Commissioner meets this burden,
the claimant is not disabled.
20 C.F.R. §§ 404.1520(g)(1),
416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity (SGA) since her September 2,
2006, alleged onset date.
Tr. 12.
Plaintiff met the insured
status requirements of the Social Security Act through
December 31, 2015.
At Step Two the ALJ found Plaintiff had severe impairments
of fibromyalgia, obesity, back impairments, bilateral shoulder
impairments, hypothyroidism, depression, anxiety, panic disorder
7 - OPINION AND ORDER
with agoraphobia, post-traumatic stress disorder (PTSD), bipolar
disorder, somatization disorder, sleep disorder/insomnia, alcohol
abuse, and anxiolytic abuse.
Tr. 12.
At Step Three the ALJ found Plaintiff’s impairments do not
meet or equal any listed impairment.
Tr. 13.
The ALJ found
Plaintiff has the RFC for a limited range of light work and can
lift and carry 10 pounds frequently and twenty pounds
occasionally.
She can frequently climb ramps and stairs;
frequently stoop, kneel, crouch, and crawl, but may never climb
ladders, ropes or scaffolds; may occasionally reach and work
overhead with the bilateral upper extremities; and must avoid
more than occasional exposure to extreme cold, vibration, and
hazards such as moving machinery and unsecured heights.
The
claimant is capable of learning, remembering, and performing
simple, routine, and repetitive work tasks involving simple work
instructions that are performed in a routine, predictable, and
low-stress work environment (defined as one in which there is a
regular production pace, few workplace changes, and no “over the
shoulder” supervision) and may have occasional contact with
supervisors and coworkers and minimal contact with the public.
Tr. 14-15.
At Step Four the ALJ found even though Plaintiff is
incapable of performing past relevant work, Plaintiff retains the
ability to perform other jobs that exist in the national economy.
8 - OPINION AND ORDER
Accordingly, the ALJ found Plaintiff is not disabled.
Tr. 18.
DISCUSSION
Plaintiff contends the Commissioner erred by (1) finding
Plaintiff less than fully credible, (2) failing to properly
weigh medical evidence, (3) failing to develop the record, and
(4) improperly weighing lay-witness testimony.
I.
Credibility of Plaintiff’s Testimony
Plaintiff contends the ALJ erred when he found Plaintiff’s
testimony was not fully credible.
The ALJ is responsible for determining credibility,
resolving conflicts in medical testimony, and resolving
ambiguities.
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995).
See also Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th Cir.
2008).
The ALJ's findings, however, must be supported by
specific, cogent reasons.
(9th Cir. 1998).
Reddick v. Chater, 157 F.3d 715, 722
See also Holohan v. Massanari, 246 F.3d 1195,
1202 (9th Cir. 2001).
Unless there is affirmative evidence that
shows the claimant is malingering, the Commissioner's reason for
rejecting the claimant's testimony must be "clear and
convincing."
Id.
The ALJ must identify the testimony that is
not credible and the evidence that undermines the claimant's
complaints.
substantial.
Id.
The evidence on which the ALJ relies must be
Id. at 724.
9 - OPINION AND ORDER
See also Holohan, 246 F.3d at 1208.
General findings (e.g., "record in general" indicates
improvement) are an insufficient basis to support an adverse
credibility determination.
Reddick, 157 F.3d at 722.
See also
Holohan, 246 F.3d at 1208.
The ALJ must make a credibility
determination with findings sufficiently specific to permit a
reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant's testimony.
Thomas v. Barnhart, 278 F.3d
947, 958 (9th Cir. 2002).
When deciding whether to accept a claimant's subjective
symptom testimony, "an ALJ must perform two stages of analysis:
the Cotton analysis and an analysis of the credibility of the
claimant's testimony regarding the severity of her symptoms."
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
Under the Cotton test, a claimant who alleges
disability based on subjective symptoms "must
produce objective medical evidence of an underlying impairment which could reasonably be
expected to produce the pain or other symptoms
alleged." Bunnell, 947 F.2d at 344 (quoting
42 U.S.C. § 423(d)(5)(A) (1988)); Cotton, 799
F.2d at 1407-08. The Cotton test imposes only
two requirements on the claimant:(l) she must
produce objective medical evidence of an
impairment or impairments; and (2) she must
show that the impairment or combination of
impairments could reasonably be expected to
(not that it did in fact) produce some degree
of symptom.
Smolen, 80 F.3d at 1282.
See also Carmickle v. Comm’r Soc. Sec.
Admin., 533 F.3d 1155, 1160 (9th Cir. 2008).
10 - OPINION AND ORDER
A.
Plaintiff’s Function Report and Pain Questionnaire
Plaintiff completed an Adult Function Report on
September 15, 2011.
Tr. 259-66.
Plaintiff reported she was
“constantly tired, in pain, [and] depressed.”
days she does not get out of bed.
Tr. 259.
On some
She stated she has a severe
learning disability that makes it hard to complete tasks, and she
has trouble concentrating.
Plaintiff also reported she injured
her hands and wrists at the gym, her legs and feet swell making
it hard to stand, and she has anxiety and panic attacks that make
her vomit.
Plaintiff stated she gets up when she feels rested and does
laundry and household chores depending on her pain and energy
levels.
Tr. 260.
attacks wake her.
She watches television and sleeps until panic
Plaintiff’s asthma makes it hard to breathe at
night.
Some days she does not get dressed and her appetite is
poor.
Her mother calls her daily to remind her to care for her
personal needs.
Plaintiff stated she prepares protein drinks, sandwiches,
and raw vegetables for food.
Tr. 261.
She cleans the kitchen,
vacuums, and does laundry, and it takes all day to complete her
chores.
Tr. 262.
She gets overwhelmed and takes breaks, and
sometimes her mother will come to help her.
Plaintiff does not
drive due to fear of panic attacks, and she does not have a
driver’s license because the written test would be difficult for
11 - OPINION AND ORDER
her due to her reading comprehension issues.
She shops for food
two or three times a month for an hour or two each trip.
Plaintiff reported she is no longer able to work out at the
gym very often, and she does not go out except for appointments.
Tr. 263.
She is able to lift 15 to 20 pounds depending on how
her back feels, and she can walk three to four blocks before
requiring rest.
Her ability to walk is affected by the weather,
her asthma, and her allergies.
Plaintiff is unable to pay
attention for very long, and she has trouble following written
instructions.
Tr. 264.
Stress causes her to “panic, freak out,
cry, sleep a lot, get angry, [and] yell.”
like changes in her routine.
Tr. 265.
She does not
Plaintiff is afraid of fire,
driving, dying, germs, and people.
Tr. 265.
She takes Effexor,
which causes dizziness and panic; Xanax, which causes a racing
heart beat; ferrate, which causes diarrhea; and Benadryl, which
causes hives.
Due to pain from fibromyalgia, Plaintiff reported she has
trouble lifting, squatting, bending, reaching, walking, sitting,
kneeling, stair climbing, and using her hands.
B.
Tr. 266.
Plaintiff’s Testimony at the Hearing
Plaintiff testified at the October 1, 2013, hearing before
the ALJ.
Tr. 26-63.
She was incarcerated at the time and had
been for the past eight months after conviction for attempting to
use a child in an inappropriate display (texting nude photos to
12 - OPINION AND ORDER
him) and for having a sexual relationship with a minor aged 16.
Tr. 32-33.
The minor was her best friend’s son.
Plaintiff
expected to be released in August 2014.
She graduated from high school and was in special education
classes for 12 years.
Tr. 33.
She last worked at Albertsons as
assistant manager of customer service.
She left after seven
years because “the bosses that I had were not kind to me.
They
were always giving me grief about getting sick all the time.
had a low immune system . . . .
I
It got to the point where with
my mental stuff that was going on, I couldn’t handle it anymore.”
Tr. 34-35.
She quit in September 2006.
She became a foster
parent to three children shortly before leaving her job.
She
briefly worked as a server in a restaurant and worked for four
days at Fred Meyer, but she had “a massive panic attack and quit
my job.”
Tr. 35.
Plaintiff stated her managers picked on her
and made fun of her in front of customers.
She stated Albertsons
managers threatened to fire her for small errors, they harassed
her for having doctors’ appointments, and they forced her to work
when she was sick.
Tr. 35-36.
During the four days that Plaintiff worked at Fred Meyer,
she worked in the deli and had three days training.
Even though
her managers knew she had a learning disability, they did not
have any patience with her, “and it got to the point where I
just, I couldn’t do it.
13 - OPINION AND ORDER
I panicked to the point where I almost
passed out.
My anxiety just was through the roof.”
Tr. 36.
Plaintiff described herself as “overly emotional” and highstrung.
Tr. 37.
Panic attacks cause her to “get frustrated and
I don’t, I shut down.
I don’t cope.”
easily and cannot calm down.
Tr. 37.
She startles
Her heart rate rises, she
hyperventilates, and she sometimes faints.
In September 2006 she
had panic attacks weekly.
Plaintiff was diagnosed with bipolar disorder two years
before the hearing.
Tr. 39.
She testified she suffers from
depression, and she isolated herself and lost friends about nine
months before her arrest.
She has had fibromyalgia since age 14.
She has severe pain throughout her body, her legs swell and ache,
and she cannot wear shoes or socks.
Tr. 39-40.
fatigue, insomnia, bulging discs, and scoliosis.
problem with her shoulder and rotator cuff.
She suffers from
She also has a
There are days when
she cannot get out of bed, and the bad days outnumber the good
days.
The correctional institution requires her to work, and she
recently requested to be put on light-duty work.
Tr. 40.
Plaintiff believes her physical and emotional issues render her
unable to work full-time.
Plaintiff testified:
I can’t stand for any part of like a long time.
I can’t walk for a long distance. I basically
can lay down for a little bit and then my body
starts to hurt, so I have to get up to move,
14 - OPINION AND ORDER
move around, sit. It’s like a cycle.
throughout the day.
It’s
Tr. 41.
Before she was incarcerated Plaintiff required an entire
week to do the household chores.
Tr. 42.
In December 2012 she
admitted herself to a hospital psychiatric unit and stayed for 18
days with suicidal ideation.
Tr. 43.
The doctors wanted her to
stay longer, but she had to pack up her apartment because she was
about to become homeless.
Plaintiff isolated herself for six
years prior to her arrest and stayed in her room with her
emotional-support dog.
Plaintiff testified she has trouble focusing on written
materials, and her comprehension is poor.
Tr. 44-45.
trouble communicating and is told she is confusing.
concentration is also poor.
She has
Her
PTSD causes her to be unable to
tolerate confrontation, and she startles easily.
She thinks she
became unable to work when she quit the job at Fred Meyer.
Plaintiff testified the correctional institution had her on
work detail as a unit orderly.
She mopped; swept; wiped down
tables; and cleaned the bathrooms, showers, and sinks.
Tr. 49.
Plaintiff stated:
Basically I am a really good worker in the past,
and I have a good work ethic. And I get up and
do my job, as best as I can, and usually I am
stuck doing everyone else’s job. And it’s to
the point now, I can’t handle it anymore. I
[have] done this for six months, and I have
struggled through this.
15 - OPINION AND ORDER
Id.
Plaintiff testified she did not know if she would be able to
take care of herself if she were home.
and anxyalytic abuse.
Plaintiff denied alcohol
There was one incident involving alcohol
and Xanax before her December 2012 hospitalization, and the
diagnoses apparently were the result of that incident.
Even though chart notes dated May 2010 erroneously indicate
she was going to the gym five times a week, she stated she was
only going to the gym about three days a week.
Tr. 52.
C. The ALJ’s Finding Regarding the Credibility of
Plaintiff’s Testimony
The ALJ found Plaintiff’s testimony was not entirely
credible.
Tr. 17.
When assessing credibility the ALJ is allowed to consider
the consistency of a claimant’s statements.
See also Thomas, 278 F.3d at 958.
SSR 96-7p, at *5.
The ALJ noted Plaintiff’s
statements were inconsistent as to why she stopped working.
Specifically, Plaintiff testified she quit working because of
panic attacks, depression, and severe general pain that rendered
her unable to get out of bed some days.
Tr. 34-35.
In August
2010, however, Plaintiff told her counselor that she quit when
she adopted three children, and in February 2011 she told a
medical provider that she could not work because she had to be
there for her children.
Tr. 17, 562, 639.
The ALJ also noted Plaintiff reported she was diagnosed with
16 - OPINION AND ORDER
Attention Deficit Hyperactivity Disorder (ADHD).
Tr. 17, 946.
There is not, however, any diagnosis of ADHD in the record.
Tr. 946.
Plaintiff also testified she was diagnosed with
fibromyalgia at age 14, but this is not supported by the medical
evidence.
Tr. 17, 39-40.
The ALJ concluded Plaintiff’s alleged limitations were
inconsistent with her activities.
Tr. 17-18. The ALJ noted
Plaintiff was independent in personal care and grooming; could
prepare simple meals; did household chores including cleaning the
kitchen, laundry, and vacuuming; used public transportation;
grocery shopped; and went to medical appointments.
259-63.
Tr. 17,
The ALJ also pointed out that Plaintiff was looking for
work in November 2009, which was three years after her alleged
onset date (Tr. 17, 370); in May 2010 Plaintiff was going to the
gym five days a week (Tr. 17, 650); in February 2011 Plaintiff
was injured playing volleyball (Tr. 17, 345, 639); in July 2012
Plaintiff was babysitting; and in August 2012 Plaintiff was
exercising on an elliptical machine and stair-stepper.
Tr. 17-18, 724, 721.
Plaintiff also testified she had been on a
work detail for six months that involved mopping floors, cleaning
tables, sweeping, cleaning bathrooms, and folding towels.
Tr. 18, 49.
The ALJ may rely on a claimant’s daily activities to form
the basis of an adverse credibility determination.
17 - OPINION AND ORDER
Orn v.
Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
Here the ALJ
identified daily activities that contradict Plaintiff’s testimony
about her limitations.
On this record the Court concludes the ALJ did not err when
he found Plaintiff’s testimony less than fully credible because
the ALJ provided legally sufficient reasons supported by
substantial evidence in the record for doing so.
II.
The Medical Evidence
Disability opinions are reserved for the Commissioner.
C.F.R. §§ 404.1527(e)(1); 416.927(e)(1).
20
If a conflict does not
arise between medical source opinions, the ALJ generally must
accord greater weight to the opinion of a treating physician than
that of an examining physician.
Lester, 81 F.3d at 830.
More
weight is given to the opinion of a treating physician because
the person has a greater opportunity to know and to observe the
patient as an individual.
Orn, 495 F.3d at 632.
In such
circumstances the ALJ should also give greater weight to the
opinion of an examining physician over that of a reviewing
physician.
Id.
If a treating or examining physician’s opinion
is not contradicted by another physician, the ALJ may only reject
it for clear and convincing reasons.
Id. (Treating physician);
Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir.
2006)(examining physician).
Even if one physician is
contradicted by another physician, the ALJ may not reject the
18 - OPINION AND ORDER
opinion without providing specific and legitimate reasons
supported by substantial evidence in the record.
at 632; Widmark, 454 F.3d at 1066.
Orn, 495 F.3d
The opinion of a nonexamining
physician by itself is insufficient to constitute substantial
evidence to reject the opinion of a treating or examining
physician.
Widmark, 454 F.3d at 1066 n.2.
The ALJ may reject
physician opinions that are “brief, conclusory, and inadequately
supported by clinical findings.”
Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005).
Scott Alvord, Psy. D., conducted a consultative
psychological evaluation of Plaintiff in April 2012.
Tr. 618-24.
Dr. Alvord conducted a mental-status examination and clinical
interview, but he did not have any medical records to review and
he did not administer any tests.
Tr. 618.
Dr. Alvord diagnosed
Plaintiff with PTSD; major depressive disorder, recurrent
(moderate); and Rule Out learning disorder (not otherwise
specified).
He opined Plaintiff’s adaptive functioning from a
psychiatric perspective fell in the moderate range of impairment.
Tr. 623.
The ALJ noted Dr. Alvord’s report and gave it significant
weight.
Tr. 16.
The ALJ, however, noted Dr. Alvord “does not
provide specific comment on how the claimant’s impairments would
affect her ability to function in a work setting.”
Tr. 16.
Plaintiff contends the ALJ erred in his consideration of
19 - OPINION AND ORDER
Dr. Alvord’s opinion by failing to note that Dr. Alvord found a
learning disability “should be ruled out.”
Tr. 623.
The record,
however, reflects the ALJ specifically noted that rule-out
diagnosis.
Tr. 16.
Plaintiff also contends the ALJ should have fully credited
Dr. Alvord’s opinion.
The ALJ, however, included limitations
noted by Dr. Alvord when the ALJ evaluated Plaintiff’s RFC; for
example, the ALJ included Plaintiff’s moderate range of
impairment and limitations to “simple, routine, and repetitive
work tasks, involving simple work instructions, which are
performed in a routine, predictable, and low stress work
environment, defined as one in which there is a regular
production pace [with] few work pace challenges.”
Tr. 14.
On this record the Court concludes the ALJ did err when he
gave only “significant” weight to Dr. Alvord’s opinion because
the ALJ provided legally sufficient reasons supported by
substantial evidence in the record.
III.
The ALJ’s Duty to Develop the Evidence
Plaintiff contends the ALJ erred by failing to order
psychological testing for Plaintiff for the purpose of ruling out
a learning disorder and by failing to order intellectual and
cognitive testing.
Plaintiff argues IQ testing can be a deciding
20 - OPINION AND ORDER
factor when determining intellectual disability and establishment
of a learning disability would likely have altered the ALJ’s
evaluation of Plaintiff’s RFC.
Plaintiff does not specify the
functional limitations arising from a documented learning
disability that were not accommodated by her RFC nor does she
cite any authority that indicates a “rule-out” diagnosis triggers
the ALJ’s duty to develop the record.
“An ALJ’s duty to develop the record further is triggered
only when there is ambiguous evidence or when the record is
inadequate to allow for proper evaluation of the evidence.”
Mayes, 276 F.3d at 459-60.
On this record the evidence is not
ambiguous and is adequate for proper evaluation.
Thus, the Court
concludes the ALJ did not err when he did not order another
psychological evaluation or IQ testing for Plaintiff.
IV.
The Lay-Witness Testimony
The ALJ has a duty to consider lay-witness testimony.
20
C.F.R. §§ 404.1513(d); 404.1545(a)(3); 416.945(a)(3); 416.913(d).
See also Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).
Friends and family members in a position to observe the
claimant's symptoms and daily activities are competent to testify
regarding the claimant's condition.
915, 918-19 (9th Cir. 1993).
21 - OPINION AND ORDER
Dodrill v. Shalala, 12 F.3d
The ALJ may not reject such
testimony without comment and must give reasons germane to the
witness for rejecting her testimony.
1462, 1467 (9th Cir. 1996).
Nguyen v. Chater, 100 F.3d
Inconsistency with the medical
evidence, however, may constitute a germane reason.
F.3d at 512.
Lewis, 236
The ALJ may also reject lay testimony predicated on
the testimony of a claimant properly found to be not credible.
Valentine, 574 F.3d at 694.
Plaintiff’s daughter, Cynthia Jones, completed a Third Party
Adult Function Report in which she reported her mother does not
sleep well, is often fatigued, does not get dressed or bathe
daily, takes a long time to do chores like laundry, and often
does not complete a chore.
Tr. 268-69.
Jones reported she helps
her mother with light house work and also calls daily to remind
her mother to take her medications.
Tr. 267-69.
Jones estimated
her mother can walk three or four blocks depending on her
allergies.
She stated Plaintiff cannot handle stress or stay on
a routine.
Tr. 273.
The ALJ noted Jones’s report, but he found the limitations
she indicated were inconsistent with the medical evidence in the
record.
Tr. 16-17.
On this record the Court concludes the ALJ did not err when
he rejected Jones’s lay-witness opinion because the ALJ provided
22 - OPINION AND ORDER
legally sufficient reasons for doing so.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 14th day of June, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
23 - OPINION AND ORDER
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