Dahlenburg v. Commissioner Social Security Administration
Filing
20
OPINION AND ORDER; Because the Commissioner's decision is based on proper legal standards and supported by substantial evidence, the Commissioner's final decision is AFFIRMED and this case is DISMISSED. Signed on 8/12/2016 by Magistrate Judge Mark D. Clarke. (jkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SHANEN L. DAHLENBURG,
SHANEN L. BROWN
Plaintiff,
Case No. 6:15-CL-01003-CL
OPINION AND ORDER
V.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
MARK D. CLARKE, Magistrate Judge:
Plaintiff SHANEN L. DAHLENBURG ("Plaintiff') seeks judicial review of the
Commissioner's decision denying her application for disability insurance benefits (DIB) and
supplemental security income (SSI) under Titles II and XVI of the Social Security Act. This
Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). All parties have consented to
allow a Magistrate Judge to enter final orders and judgments in this case in accordance with Fed.
R. Civ. P. 73 and 28 U.S.C. § 636(c). Because the Commissioner's decision is based on proper
1 - OPINION AND ORDER
legal standards and supported by substantial evidence, the Commissioner's decision is
AFFIRMED and this matter is dismissed.
BACKGROUND
Plaintiff was born in April, 1972. Tr. 150. She completed eighth grade and attended
special education classes throughout her schooling. Tr. 37. Plaintiff has worked as a medical
transport driver. Id.
Plaintiff protectively filed an application for DIB and SSI on September 26, 2011,
alleging disability beginning August 19, 2009, due to "bi-polar, learning disabilities, asthma,
arthritis." Tr. 57. The Commissioner denied her application initially and upon reconsideration.
Tr. 81-97. At Plaintiffs request, a hearing was held before an Administrative Law Judge ("ALJ")
on September 18, 2013. Tr. 30-56. On November 7, 2013, the ALJ found Plaintiff not disabled.
Tr. 11-25. The Appeals Council denied Plaintiffs request for review, making the ALJ's decision
the final decision of the Commissioner. Tr. 1-4. Plaintiff now seeks judicial review of that
decision.
DISABILITY ANALYSIS
A claimant is disabled if he or she is unable 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[.]" 42 U.S.C.
§ 423(d)(l )(A). "Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act."
Keyser v. Comm 'r, 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially dispositive. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following
series of questions:
2 - OPINION AND ORDER
1.
2.
3.
4.
5.
Is the claimant performing "substantial gainful activity?" 20 C.F .R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
Is the claimant's impairment "severe" under the Commissioner's
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless
expected to result in death, an impairment is "severe" if it significantly
limits the claimant's physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted
or must be expected to last for a continuous period of at least 12 months.
20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe
impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii);
416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis
proceeds to step three.
Does the claimant's severe impairment "meet or equal" one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii);
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds beyond step three. At that
point, the ALJ must evaluate medical and other relevant evidence to assess
and determine the claimant's "residual functional capacity" ("RFC"). This
is an assessment of work-related activities that the claimant may still
perform on a regular and continuing basis, despite any limitations imposed
by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c);
416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC,
the analysis proceeds to step four.
Can the claimant perform his or her "past relevant work" with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
Considering the claimant's RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v);
404.1560(c); 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id See also Bustamante v. Massanari, 262 F.3d 949, 954
(9th Cir. 2001).
3 - OPINION AND ORDER
The claimant bears the burden of proof at steps one through four. Id. at 953. The
Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, "taking into consideration the claimant's residual functional
capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national
economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant
is able to perform other work existing in significant numbers in the national economy, the
claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.
THE ALJ'S FINDINGS
The ALJ applied the sequential process. At step one, the ALJ found Plaintiff has not
engaged in substantial gainful activity since the alleged onset date. Tr. 16. At step two, the ALJ
found Plaintiff had the following severe impairments: right knee degenerative joint disease;
panic disorder with agoraphobia; social phobia; posttraumatic stress disorder, in remission;
bipolar disorder; dysthymia; somatization disorder; delusional disorder; attention
deficit/hyperactivity disorder (ADHD); and major depressive disorder. Id. At step three, the ALJ
found that Plaintiff did not have an impairment or combination of impairments that met or
equaled one of the specific impairments listed in the regulations. Tr. 18.
The ALJ determined that Plaintiff had the RFC to perform light work with lifting and
carrying 20 pounds occasionally and 10 pounds frequently, standing and walking about six hours
of an eight-hour workday, and sitting about six hours of an eight-hour workday. Tr. 20. Further,
Plaintiff should be allowed to alternate sitting or standing positions as needed throughout the day
4 - OPINION AND ORDER
while remaining on task. She can occasionally climb ramps, stairs, ladders, ropes, or scaffolds.
Id. Plaintiff can frequently balance and stoop, but should only occasionally kneel, crouch and
crawl. Id. She should avoid concentrated exposure to hazardous machinery and irritants such as
fumes, odors, dust, gases, and poorly ventilated areas. Id. Plaintiff is limited to occupations that
do not require complex written or verbal communication. Id. Instructions should primarily be
demonstrated. Id. She can understand and carry out simple instructions and can have occasional,
brief, superficial contact with the public or coworkers. Id. In reaching her conclusion, the ALJ
considered Plaintiffs testimony, but found her not fully credible. Tr. 21.
At step four, the ALJ found Plaintiff is unable to perform past relevant work. Tr. 23.
Considering Plaintiffs age, education, experience, and RFC, the ALJ determined Plaintiff was
capable of performing jobs that exist in significant ·numbers in the national economy, including
order filer, mail clerk, and information router. Tr. 25. Therefore, the ALJ concluded Plaintiff had
not been disabled, as defined by the Social Security Act, since August 19, 2009. Id.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner's decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial
evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401
(1971) (citation and internal quotations omitted). In reviewing the Commissioner's alleged
errors, this court must weigh "both the evidence that supports and detracts from the
[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
5 - OPINION AND ORDER
Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is
rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
When the evidence before the ALJ is subject to more than one rational interpretation, we
must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shala/a, 53
F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, "cannot affirm the
Commissioner's decision on a ground that the Administration did not invoke in making its
decision." Stout v. Comm 'r, 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a
court may not reverse an ALJ's decision on account of an error that is harmless. Id at 1055-56.
"[T]he burden of showing that an error is harmful normally falls upon the party attacking the
agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
DISCUSSION
Plaintiff argues the ALJ erred by: (1) failing to give proper weight to Dr. Taubenfeld's
assessment; (2) failing to include fibromyalgia as a severe impairment; and (3) failing to give
clear and convincing reasons for rejecting Plaintiffs testimony. PL 's Br. 5.
I.
The ALJ Gave Proper Weight to Dr. Taubenfeld's Assessment
Plaintiff argues the ALJ failed to give proper weight to Dr. Taubenfeld's assessment. The
ALJ rejected Dr. Taubenfeld's assessment because of (1) Plaintiffs work in 2012; (2) Plaintiffs
limited and pain-focused treatment record; and (3) Plaintiffs daily activities. Because Dr.
Taubenfeld's assessment is inconsistent with State agency opinions, Tr. 329, 66-67, 95-96, the
ALJ is required to provide specific, legitimate reasons supported by substantial evidence in the
record before rejecting Dr. Taubenfeld's opinion. Widmark v. Barnhart, 454 F.3d 1063, 1066-67
(9th Cir. 2006). An inconsistency with other evidence in the record is a valid reason to discount a
6 - OPINION AND ORDER
medical opinion. 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3); Rollins v. Massanari, 261 F.3d
853, 856-57 (9th Cir. 2001). The ALJ properly rejected Dr. Taubenfeld's opinion.
a. 2012 Work
Plaintiffs work at First Medical Transport LLC in early 2012 contradicts Dr.
Taubenfeld's assessment. Dr. Taubenfeld opined Plaintiffs disability commenced on January 1,
2012. Tr. 329. However, Plaintiff worked with no accommodations or work restrictions during
the first quarter of 2012. Tr. 325-27. Further, Plaintiff did not stop working because of her
impairment and the ALJ was not required to credit Plaintiffs report that she was going to quit. 1
Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990). This inconsistency between Dr.
Taubenfeld's assessment and the evidence of Plaintiffs 2012 work is a legitimate reason to
discount Dr. Taubenfeld's opinion.
b. Limited Record
Dr. Taubenfeld's assessment of marked limitations in concentration and social
functioning is not consistent with Plaintiffs limited treatment record where she was largely
focused on pain. Plaintiff contends that her treatment record was limited due to lack of funds and
anxiety. Plaintiff also argues that her primary focus was on pain because she was meeting with
doctors who were not mental health specialists. The ALJ found that Plaintiffs treatment record
as a whole showed a better picture of Plaintiffs mental health than the snapshot given by Dr.
Taubenfeld's consultative examination. Tr. 23. The ALJ is required to consider the extent to
which a medical opinion is consistent with the treatment record and is entitled to draw
reasonable inferences from the evidence. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4); SSR 8262, 1982 WL 31386, at *4.
1
Plaintiff testified she was unable to handle her job at First Medical Transport, but the day she went in to give
notice, the company closed. Tr. 39.
7 - OPINION AND ORDER
As for her limited treatment record being so limited, Plaintiff testified that "she only
recently sought treatment because she could not make herself go into the building." Tr. 20, 42.
The ALJ found that Plaintiffs failure to seek treatment was reasonably explained by Plaintiff
having mild symptoms. The ALJ properly considered the information in the record and
reasonably drew inferences from the evidence.
Plaintiff also mentions in her brief that lack of funds played a role in her not seeking
treatment. However, Plaintiff testified that she only recently sought mental health treatment
because she was unable to go into the building. Tr. 42. No mention of financial hardship was
ever made. Again, in light of the record, the ALJ reasonably concluded that Plaintiffs lack of
treatment stemmed from mild symptoms more than a lack of funding. Separately, it is reasonable
Plaintiff focused on pain while meeting with doctors who were not mental health specialists, but
the mental health treatment record remains extremely limited and does not support Dr.
Taubenfeld's findings. For example, Dr. Taubenfeld assessed marked limitations in six
categories concerning Plaintiffs concentration and social functioning. When State agency
examiners reviewed the entirety of Plaintiffs treatment record, they assessed only moderate or
not significant limitations in the same six categories.
Dr. Taubenfeld's primary support for his assessment is Plaintiffs Global Assessment of
Functioning score. However, the ALJ found that these one-time assessments are largely
reflective of a claimant's self-reporting rather than observations over time. The ALJ properly
considered the extent to which Dr. Taubenfeld's opinion was consistent with the treatment record
as a whole and gave specific and legitimate reasons for rejecting his opinion.
c. Daily Activities
8 - OPINION AND ORDER
Dr. Taubenfeld's assessment is also contradicted by evidence in the record. Plaintiff
argues that the marked limitations in concentration and social functioning assessed by Dr.
Taubenfeld were corroborated by Ms. Stater's third party function report and are uncontradicted
by Plaintiffs daily activities. The ALJ found that Plaintiffs daily activities were inconsistent
with both Ms. Stater's observations and Dr. Taubenfeld's assessment. The ALJ may discount a
medical opinion if it is inconsistent with other evidence in the record. 20 C.F .R. §§
404.1527(c)(3), 416.927(c)(3); Rollins, 261 F.3d at 856-57.
Ms. Sater reported that there were days when Plaintiff wouldn't leave her room.
However, the ALJ found that this may have been a product of a lack of structure because there is
no evidence in the record that Plaintiff had trouble leaving her room on days that she needed to
go to work at her 2012 job. Plaintiff also self-reported that every day she cooks for her daughter,
does house and yard work, goes outside, and is social for at least six hours. This, along with
Plaintiffs 2012 job, is inconsistent with Dr. Taubenfeld's assessment that Plaintiff was
"markedly" limited in sustaining an ordinary routine without special supervision.
Dr. Taubenfeld also assessed marked limitation in Plaintiffs ability to complete a normal
workday without unreasonable rest periods. However, Plaintiff reported that her need to lie down
could be spread out throughout the day and that she could be active for five hours at a time. This
is adequate stamina to sustain work between normal breaks. Ms. Sater's report and Dr.
Taubenfeld's assessment are inconsistent with Plaintiffs daily activities. Therefore, the ALJ was
justified in discounting Dr. Taubenfeld's opinion.
The ALJ provided specific and legitimate reasons for giving Dr. Taubenfeld's opinion
little weight. Even so, the ALJ did not fully reject Dr. Taubenfeld's opinion. In addition to the
occupational limitations proposed by the State, the ALJ added further limitations based on Dr.
9 - OPINION AND ORDER
Taubenfeld's opinion. Tr. 23. There is no error in the weight the ALJ gave to Dr. Taubenfeld's
opm1on.
II.
Fibromyalgia
Plaintiff contends the ALJ erred by omitting fibromyalgia from the list of severe
impairments. However, the ALJ found that the medical records did not adequately establish
fibromyalgia as a medically determinable impairment. Tr. 17.
Fibromyalgia is a disorder defined by the American College of Rheumatology (ACR) and
is recognized as medically-determinable if there are signs that are clinically established by a
medical record. Under Social Security Ruling 12-2p, there are two sets of criteria promulgated
by the ACR that the ALJ may use to find a person has a medically determinable impairment of
fibromyalgia. First, the 1990 ACR criteria requires (1) a history of widespread pain in all four
quadrants of the body for a minimum duration of three months (2) accompanied by at least 11 of
18 specific tender points, and (3) evidence that other disorders that could cause the symptoms or
signs were excluded. Gibson v. Comm'r, No. 3:14-cv-01217-MA, 2015 U.S. Dist. LEXIS
108487, at *20 (D. Or. Aug. 18, 2015) (same). Second, the 2010 ACR preliminary diagnosis
criteria require (1) a history of widespread pain as previously described, (2) with six or more
fibromyalgia symptoms, signs or co-occurring conditions, and (3) evidence that other disorders
that could cause the symptoms have been excluded. The ACR also requires that the diagnosis
and examination stem from one physician. See Hegar v. Colvin, No. 6:14-CV-00455-PK, 2015
U.S. Dist. LEXIS 84686, at *19 (D. Or. June 1, 2015).
It appears that on establishing care with Dr. Weisensee, Plaintiffs self-report of
fibromyalgia was accepted. Plaintiffs medical records note a family history of fibromyalgia, but
the records from 2010 do not reflect a diagnosis of fibromyalgia. Tr. 265. Plaintiff did not
10 - OPINION AND ORDER
identify fibromyalgia as a condition limiting her ability to work in her initial disability report
from October 2011. Tr. 178. As of the next report, made about eight months later, Plaintiff
claimed that "fibromyalgia has worsened in the last few months." Tr. 219. On establishing care
with Dr. Weisensee in March 2012, Plaintiff reported that she "carries a diagnosis of
fibromyalgia currently not treated." Tr. 359-362. Dr. Weisensee continued to list fibromyalgia
and states that Plaintiff had "Multiple tender spots consistent" with the condition, but Dr.
Weisensee never formally diagnosed Plaintiff under the 1990 or 2010 ACR criteria. Tr. 379-401.
Based on the 1990 ACR criteria, Plaintiff was not properly diagnosed because no
physician identified at least 11 positive tender points on physical examination. Similarly, based
on the 2010 ACR criteria, Plaintiff was not properly diagnosed because no single physician
documented manifestations of at least six fibromyalgia signs, symptoms, or co-occurring
conditions. The ALJ reasonably found that there is no work up of fibromyalgia in the record.
Despite justifiably finding no fibromyalgia, the ALJ still considered all Plaintiffs alleged
fibromyalgia symptoms when assessing her RFC. The ALJ considered depression, panic disorder
with agoraphobia, and somatization disorder to be severe impairments. Tr. 16. The ALJ credited
the opinions of Joshua J. Boyd, Psy.D., and Kordell N. Kennemer, Psy.D., who considered
Plaintiffs memory problems and anxiety. Tr. 23, citing Tr. 62-63, 66-67, 90-91, 94-96. Finally,
the ALJ considered Plaintiffs alleged fatigue, which Plaintiff specifically attributed to her
fibromyalgia. Tr. 21, 47. Thus, even ifthe ALJ had erred, the error would have been harmless
because the ALJ considered all of Plaintiffs alleged limitations and reasonably accommodated
those that were credible.
III.
Plaintiff's Testimony
11 - OPINION AND ORDER
Plaintiff argues that the ALJ failed to give clear and convincing reasons for rejecting
Plaintiffs testimony that she needs to lie down for 45-minutes twice during a normal workday.
The ALJ properly rejected Plaintiffs testimony because her subjective complaints were (1)
inconsistent with her daily activities and (2) undermined by her work in 2012. Additionally, she
failed to seek treatment until shortly before the hearing.
The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and resolving ambiguities. Andrews, 53 F.3d at 1039. However, the ALJ's findings
must be supported by specific, cogent reasons. Reddick v. Chafer, 157 F.3d 715, 722 (9th Cir.
1998). Unless there is affirmative evidence showing that the claimant is malingering, the ALJ' s
reason for rejecting the claimant's testimony must be "clear and convincing." Id. The ALJ must
identify what testimony is not credible and what evidence undermines the claimant's complaints.
Id. The evidence upon which the ALJ relies must be substantial. Reddick, 157 F.3d at 724.
General findings (e.g., "record in general indicates improvement") are an insufficient basis to
support an adverse credibility determination. Id. at 722. The ALJ must make a credibility
determination with findings sufficiently specific to permit the 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). Examples of clear and convincing reasons for rejecting Plaintiffs testimony include
inconsistencies between her testimony and her conduct; daily activities inconsistent with the
alleged symptoms; inadequately explained failure to seek treatment; severity and effect of the
symptoms complained of; and the ability to work after allegedly becoming disabled. Tommasetti
v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th
Cir. 2007); Light v. Soc. Sec. Admin., 119 F.3d 789,792 (9th Cir. 1997); Bray v. Comm 'r, 554
F.3d 1219, 1227 (9th Cir. 2009); Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007). Further,
12 - OPINION AND ORDER
Plaintiff should not be penalized for attempting to a lead normal life in the face of her
limitations. Reddick, 157 F.3d at 722.
a. Subjective Complaints
The ALJ found that Plaintiffs subjective complaints were (1) inconsistent with her daily
activities and (2) undermined by her work in 2012. These are valid considerations supported by
substantial evidence.
First, Plaintiffs ability to do some housework or spend time with her friend is not
necessarily inconsistent with her claim of disability. However, Plaintiff reported that it is "hard
for [her] to do anything," Tr. 21, 42, and that she can only spend six hours with others. The ALJ
found these subjective complaints to be inconsistent with a variety of activities Plaintiff claims
she does every day, including spending 6-8 hours with Ms. Sater while they help each other with
household chores an.d engage in hobbies together. These activities are inconsistent with
Plaintiffs testimony and the alleged severity of her symptoms.
Second, Plaintiffs 2012 work undermines her subjective complaints because she worked
after she allegedly became disabled, she failed to report it to the Agency, and she stopped
working for reasons other than disability. Tr. 21. The ability to work after allegedly becoming
disabled weighs against Plaintiffs credibility.
b. Failure to Seek Treatment
The ALJ found seeking mental health treatment only 27 days before the hearing "and
after the hearing notice was issued is suspicious for an attempt to generate a medical record." Tr.
22, 369. Plaintiff contends that her treatment record was limited due to lack of funds and anxiety
preventing care. Plaintiff also argues that her primary focus was on pain because she was
meeting with doctors who were not mental health specialists. The ALJ may consider
13-0PINION AND ORDER
inadequately explained failure to seek treatment in weighing Plaintiffs credibility. Orn, 495 F.3d
at 636. As previously discussed, the ALJ reasonably concluded that Plaintifrs lack of treatment
stemmed from mild symptoms more than anxiety or a lack of funding. Plaintiff did not
adequately explain why she failed to seek treatment until shortly before the hearing. The ALJ
relied on substantial evidence and provided clear and convincing reasons for discounting
Plaintiffs opinion.
Despite the negative credibility finding, the ALJ accounted for Plaintiffs claim that she
needs to lie down at intervals. Plaintiff reported that her need to lie down could be spread out
throughout the day. Tr. 47. She also reported that she could be active for five hours at a time. Tr.
22. An eight-hour workday consists of "a morning break, a lunch period, and an afternoon break
at approximately 2-hour intervals." SSR 96-9p, 1996 WL 374185, at *6. Thus, the ALJ could
reasonably conclude that Plaintiff had sufficient stamina to sustain work between normal breaks.
The ALJ was not required to credit Plaintiffs testimony that she needs to lie down for 45
minutes two times during a normal work day for the reasons previously provided.
CONCLUSION
Because the Commissioner's decision is based on proper legal standards and supported
by substantial evidence, the Commissioner's final decision is AFFIRMED and this case is
DISMISSED.
IT IS SO ORDERED.
~~
~~D.CLARKE
United States Magistrate Judge
14 - OPINION AND ORDER
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