Spain v. Commissioner Social Security Administration

Filing 24

OPINION AND ORDER. Based on the foregoing, the Court AFFIRMS the Commissioner's decision denying Spain's application for benefits. Signed on 2/8/2017 by Magistrate Judge Stacie F. Beckerman. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BETSI SPAIN,

Case No. 6:15-cv-01647-SB
Plaintiff,

OPINION AND ORDER

v.

CAROLYN W. COLVIN,
Commissioner of Social Security
Administration,
Defendant.
_________________________________
BECKERMAN, Magistrate Judge.
Betsi Spain (“Spain”) seeks judicial review of the final decision by the Social Security
Commissioner (“Commissioner”) denying her applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social
Security Act. This Court has jurisdiction to review the Commissioner’s decision pursuant to 42
U.S.C. § 405(g). Based on a careful review of the record, the Court AFFIRMS the
Commissioner’s decision.
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1- OPINION AND ORDER

BACKGROUND
Spain was born in May 1984, making her 23 years old on June 1, 2007, the alleged
disability onset date. (Tr. 251.) Spain has a high school education, and has worked at fast food
restaurants. (Tr. 83-84.) Spain alleges disability due to “low average IQ,” post-traumatic stress
disorder (“PTSD”), learning disorder, depression, anxiety, avoidant and dependent personality
traits, problems with primary support group, and a low GAF score. (Tr. 230.)
On September 10, 2007, psychologist Dr. Norvin Cooley evaluated Spain at the request
of her criminal defense attorney. (Tr. 278-96.) He examined her criminal history in detail. Spain
was charged with two counts of theft I, seven counts of negotiating a bad check, five counts of
theft II, one count of theft of services, and one count of fraudulent use of a credit card on April
24, 2007; six counts of theft I on June 20, 2007; and burglary I, identity theft, forgery II, theft II,
criminal possession of a forged instrument, and theft III on July 6, 2007. (Tr. 278-80.) Spain’s
mother died from a brain tumor when she was sixteen, and her mother’s death still weighed on
her at the time of the evaluation. (Tr. 281.) Her mother’s illness was hard on Spain’s family
because, in addition to medical care, her mother’s behavior became hypercritical in the twelve
years she was affected by the tumor. (Tr. 282.) Spain lived in constant fear her mother would die
at any moment, and her mother and father had marital difficulties. (Id.) Both of her parents
abused alcohol and marijuana around her when she was young. (Id.) She was in special
education classes because she had a reading problem, and her Corvallis School District
Individualized Education Program stated that she needed special assistance with written
language and speech and language. (Id.)
In the evaluation, Dr. Cooley noted that Spain appeared to have low average intellectual
abilities. (Tr. 285.) While she claimed problems with short-term and immediate memory, he

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noted that there were no indications of memory issues during the interview. (Id.) Dr. Cooley
administered several objective tests and found that Spain had a low average IQ, low average
verbal skills, a significantly impaired ability to think abstractly, better than average perceptual
tracking, difficulties with activities that require sustained attention, and substantial academic
deficits. (Tr. 285-87.) However, Dr. Cooley noted that Spain may not have participated in the
tests in a “completely forthright manner,” and “the nature of her responses might lead the
evaluator to form a somewhat inaccurate impression of the client based upon [her] style of
responding.” (Tr. 288.) Dr. Cooley concluded that Spain’s responses indicated significant
depression and were consistent with PTSD, dysthymia, learning disorder, and avoidant and
dependent personality traits. (Tr. 293-94.)
On July 2, 2012, nurse practitioner Deidre Greene noted that Spain’s medications
included Amitriptyline, melatonin, omeprazole, Zoloft, Implanon, and vitamin D3. (Tr. 456.)
On August 14, 2013, licensed psychologist Dr. Scott Alvord evaluated Spain and found
that she suffered from bipolar affective disorder type II, PTSD, and intellectual deficits. (Tr.
628.) He further found that her memory was worse than expected and could reflect a cognitive
disorder. (Tr. 628.) He opined that Spain functioned in the high elementary school range
academically, and likely would “struggle significantly with maintaining consistency in a job
setting given severe anxiety as well as inconsistent mood functioning.” (Id.)
On October 4, 2013, Dr. Alvord completed a mental residual functional capacity (“RFC”)
assessment and concluded that Spain would be precluded from functioning independently,
appropriately, and effectively for at least ten to fifteen percent of the workday in every category
assessed, including understanding and memory, sustained concentration and persistence, social
interaction, and adaptation. (Tr. 617-21.) Overall, Dr. Alvord concluded that Spain would be

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unable to perform independently, appropriately, and effectively for fifty percent of the workday.
(Id.)
Notes from group therapy sessions and private appointments from August 2013 to March
2014 detail Spain’s struggles with her family, finding an apartment, and identifying coping
strategies for anxiety and depression. (Tr. 650-79, 694-98.)
On January 16, 2014, Spain reported to the Office of Vocational Rehabilitation Services
that she wanted a job where she could “answer phones, greet people and maybe show people
where things are.” (Tr. 264.) The rehabilitation counselor noted that Spain was “good with
people.” (Tr. 269.)
On January 29, 2014, social worker Jeremy Springer wrote a letter on behalf of Spain.
(Tr. 690-91.) Springer and Spain met one to two times per month for over a year. (Id.) Springer
opined that Spain was severely depressed and occasionally hypomanic, and exhibited symptoms
of PTSD. (Id.) Springer concluded that Spain:
could not function consistently in a work setting which required consistent
attendance at specified hours, ability to follow any but basic processes and
directions, or prolonged/repetitive tasks, without extremely flexible expectations
and accommodations. Additionally, I do not expect that she would respond well to
criticism from supervisors and would likely come to avoid the work setting
altogether, or be triggered into a depressive or hypomanic episode which would
further negatively impact her work, as evidenced by past employment
experiences.
(Id.)
An administrative law judge (“ALJ”) convened a hearing on February 11, 2014, at which
Spain testified about the limitations resulting from her impairments. (Tr. 57-94.) Spain testified
that she last worked in 2007, and stopped because she went to jail. (Id.) When asked why she
told Dr. Alvord that she had never worked anywhere longer than four months when she had
actually worked for four years at Wendy’s, she said “he never asked about Wendy’s.” (Id.) She
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also stated that the managers at Wendy’s were “covering for [her]” and her cash register often
came up with an incorrect balance. (Id.) She alleged an overworked shoulder since she was
sixteen years old for which she received cortisone injections. (Id.) She volunteered at the Habitat
for Humanity ReStore and took a computer class, and used a CPAP machine that helped with her
sleep apnea. (Id.) She assisted her father after his knee surgery and watched her sister’s two
children. (Id.) She alleged a need for a therapy companion cat while she works because it reduces
her anxiety. (Id.) She alleged no problems with walking, sitting, bending over, crouching, and
walking up stairs, but alleged some difficulty standing for long periods of time and raising her
arms over her head. (Id.)
The ALJ posed a series of questions to a vocational expert (“VE”), who also testified at
Spain’s hearing. The ALJ first asked the VE to assume that a hypothetical worker of Spain’s age,
education, and work experience was limited to lifting 20 pounds occasionally and 10 pounds
frequently; can stand and/or walk eight hours and can sit for eight hours with normal breaks;
should not reach overhead bilaterally; is limited to understanding, remembering, and carrying out
simple instructions that could be learned in thirty days or less; and is limited to occasional public
and coworker contact, no work directly with the public, and no group tasks with other
employees. (Tr. 84.) The hypothetical worker was further limited by not working with money or
performing record-keeping duties. (Id.) The VE testified that the hypothetical worker could not
perform Spain’s past work as a fast food worker. (Id.) However, the VE testified that other jobs
existed in the national economy that the hypothetical worker could perform, such as office
helper, security guard, meter reader, and escort vehicle driver. (Tr. 85.) The VE testified that if
an employee was off task more than ten percent of the workday, that employee would likely not
be able to sustain employment. (Tr. 86.)

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Spain’s attorney questioned the VE and asked if an employee could sustain employment
if her productivity was ten percent lower than her coworkers, to which the VE responded in the
negative. (Tr. 88.) When asked if Spain could keep her therapy companion cat at these jobs, the
VE responded that the security guard position would likely not allow the presence of her cat, but
the office helper position might. (Tr. 92-93.)
In a written decision issued on March 14, 2014, the ALJ applied the five-step sequential
evaluation process set forth in 20 C.F.R. § 416.920(a)(4), and found that Spain was not disabled.
The Social Security Administration Appeals Council denied Spain’s petition for review, making
the ALJ’s decision the Commissioner’s final decision. Spain timely appealed to federal court.
THE FIVE-STEP SEQUENTIAL PROCESS
I.

LEGAL STANDARD
A claimant is considered 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)(1)(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 Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps
are as follows:
(1) Is the claimant presently working in a substantially gainful activity? (2) Is
the claimant’s impairment severe? (3) Does the impairment meet or equal [one
of the listed impairments]? (4) Is the claimant able to perform any work that he
or she has done in the past? and (5) Are there significant numbers of jobs in the
national economy that the claimant can perform?
Id. at 724-25. The claimant bears the burden of proof for the first four steps in the process.
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the

6- OPINION AND ORDER

burden at any of the first four steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S.
137, 140-41 (1987).
The Commissioner bears the burden of proof at step five of the process, where the
Commissioner must show 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). If
the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at
954 (citations omitted).
II.

THE ALJ’S DECISION
At the first step of the sequential process, the ALJ found that Spain had not engaged in

substantial gainful activity since June 1, 2007, the alleged onset date. (Tr. 32.) At the second
step, the ALJ found that Spain had the severe medically determinable impairments of borderline
intellectual functioning, PTSD, dysthymia, bipolar disorder, learning disorder NOS, obesity, and
obstructive sleep apnea. (Tr. 32.) The ALJ found Spain’s bursitis and ADHD to be non-severe
impairments. (Tr. 32-33.)
At the third step, the ALJ found that Spain’s combination of impairments was not the
equivalent of any of those on the Listing of Impairments. The ALJ then assessed Spain’s RFC
and found that she could perform light work subject to the following limitations:
[Spain] can stand/walk 8 hour and sit 8 hours with normal breaks in an 8-hour
workday. The claimant can never reach overhead bilaterally. The claimant can
understand, remember and carry out only simple instructions that can be learned
in 30 days or less, can have occasional public contact, but no work directly with
the public, occasional coworker contact, but no group tasks, and no work with
money or a need for formal recordkeeping (i.e., accounting or data entry). The
claimant would need a supervisor to check in once per shift to answer questions.
The claimant must avoid exposure to workplace hazards such as unprotected
heights or dangerous machinery. She would be expected to be off task up to 5% of

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the work day. The claimant must be permitted to take written notes when given
instructions.
(Tr. 34.)
At the fourth step, the ALJ concluded that Spain could not perform her past relevant work
as a fast food worker. (Tr. 39.)
At the fifth step, the ALJ concluded that Spain could perform jobs that exist in significant
numbers in the national economy, including office helper, security guard, and meter reader. (Tr.
39-40.) Accordingly, the ALJ concluded that Spain was not disabled, as defined by the Social
Security Act, during the relevant time period.
STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner’s findings
are “not supported by substantial evidence or [are] based on legal error.” Bray v. Comm’r Soc.
Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d
880, 882 (9th Cir. 2006)). Substantial evidence is defined as “more than a mere scintilla [of
evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)).
The district court “cannot affirm the Commissioner’s decision simply by isolating a
specific quantum of supporting evidence.” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.
2001) (quoting Tackett, 180 F.3d at 1097). Instead, the district court must consider the entire
record, weighing both the evidence that supports the Commissioner’s conclusions, and the
evidence that detracts from those conclusions. Id. However, if the evidence as a whole can
support more than one rational interpretation, the ALJ’s decision must be upheld; the district

8- OPINION AND ORDER

court may not substitute its judgment for the judgment of the ALJ. Bray, 554 F.3d at 1222
(citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).
DISCUSSION
Spain alleges the ALJ erred by improperly assessing: (A) her subjective symptom
testimony; (B) “other source” evidence; and (C) medical opinion evidence. For the reasons that
follow, the Court affirms the Commissioner’s decision.
I.

SUBJECTIVE SYMPTOM TESTIMONY
A.

Applicable Law

In the Ninth Circuit, absent an express finding of malingering, an ALJ must provide
specific, clear, and convincing reasons for rejecting a claimant’s testimony:
Without affirmative evidence showing that the claimant is malingering, the [ALJ]’s
reasons for rejecting the claimant’s testimony must be clear and convincing. If an
ALJ finds that a claimant’s testimony relating to the intensity of his pain and other
limitations is unreliable, the ALJ must make a credibility determination citing the
reasons why the testimony is unpersuasive. The ALJ must specifically identify
what testimony is credible and what testimony undermines the claimant’s
complaints.
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 597 (9th Cir. 1999) (citations omitted).
Clear and convincing reasons for rejecting a claimant’s subjective symptom testimony include
“conflicting medical evidence, effective medical treatment, medical noncompliance,
inconsistencies in the claimant’s testimony or between her testimony and her conduct, daily
activities inconsistent with the alleged symptoms, and testimony from physicians and third
parties about the nature, severity and effect of the symptoms complained of.” Bowers v. Astrue,
No. 6:11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012); see also Molina v. Astrue,
674 F.3d 1104, 1112 (9th Cir. 2012) (“[T]he ALJ is not required to believe every allegation of
disabling pain, or else disability benefits would be available for the asking, a result plainly

9- OPINION AND ORDER

contrary to 42 U.S.C. § 423(d)(5)(A).” (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.
1989))).
In assessing a claimant’s credibility, an ALJ may also consider (1) “ordinary techniques
of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements
concerning the symptoms, and other testimony by the claimant that appears less than candid,”
and (2) “unexplained or inadequately explained failure to seek treatment or to follow a
prescribed course of treatment[.]” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). If the
ALJ’s credibility finding is supported by substantial evidence in the record, district courts may
not engage in second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)
(citing Morgan, 169 F.3d at 600).
The Court notes that, pursuant to SSR 16-3p, the ALJ is no longer tasked with making an
overarching credibility determination and instead assesses whether the claimant’s subjective
symptom statements are consistent with the record as a whole. See SSR 16-3p, available at 2016
WL 1119029 (superseding SSR 96-7p). However, the ALJ’s March 2014 decision was issued
before SSR 16-3p became effective and there is no binding precedent establishing that this new
ruling applies retroactively. See Ashlock v. Colvin, No. 3:15-cv-05767 DWC, 2016 WL 3438490,
at *5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to an ALJ decision issued
prior to the effective date); see also Garner v. Colvin, 626 Fed. App’x 699, 701 (9th Cir. 2015)
(“[W]e cannot assign error to the ALJ for failing to comply with a regulation that did not exist at
the time.”).
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B.

Application of Law to Fact

There is no affirmative evidence that Spain is malingering and, therefore, the ALJ was
required to provide specific, clear, and convincing reasons for discrediting Spain’s testimony. As
explained below, the Court concludes that the ALJ satisfied the standard.
The ALJ discredited Spain’s subjective testimony because she left her job for reasons
unrelated to her allegedly disabling conditions. (Tr. 35.) Spain testified that she would still be
working at Wendy’s if she had not been arrested, which is a clear and convincing reason to doubt
her allegation of being unable to work as the result of her impairments. See Bruton v. Massanari,
268 F.3d 824, 828 (9th Cir. 2001) (a plaintiff’s reason for leaving their job is a valid credibility
consideration).
The ALJ also discredited Spain because she sought employment, but was unsuccessful
due to her criminal history and because she was on probation. (Tr. 35.) Indeed, Spain testified at
the hearing that businesses refused to hire her because of her criminal record. (Tr. 61.) A
plaintiff’s effort to obtain employment, despite claims of disabling conditions, is a clear and
convincing reason to doubt the claimant’s testimony that she is unable to work as the result of
her impairments. See Bray, 554 F.3d at 1227; Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996);
Rogal v. Colvin, 590 F. App’x 667, 670 (9th Cir. 2014).
The ALJ also found that Spain’s activities of daily living were inconsistent with her
alleged impairments. (Tr. 35.) Testimony inconsistent with a plaintiff’s daily activities is a clear
and convincing reason to discount her subjective testimony. Tommasetti v. Astrue, 533 F.3d
1035, 1039 (9th Cir. 2008). Spain alleged that she was unable to work because of her conditions,
yet she was able to volunteer twenty hours per week at the Habitat for Humanity ReStore, care
for her father, care for her sister’s two children, take a computer class, and clean her father’s

11- OPINION AND ORDER

house. (Tr. 73-75.) The ALJ did not err in citing these activities of daily living to discredit
Spain’s testimony.
The ALJ also discounted Spain’s testimony because she stated that she needed her
therapy cat in order to work, but attended the administrative hearing without her cat and did not
appear anxious or uncomfortable. (Tr. 35.) The ALJ did not err by using her own observations at
the hearing to identify inconsistencies in Spain’s testimony. See Verduzco v. Apfel, 188 F.3d
1087, 1090 (9th Cir. 1999).
To the extent other reasons asserted by the ALJ were invalid, any such error is harmless.
See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (the ALJ’s
credibility decision may be upheld even if not all of the ALJ’s reasons for rejecting the
claimant’s testimony are upheld). The ALJ cited specific, clear, and convincing reasons to
discredit Spain’s subjective symptom testimony, and those reasons were supported by substantial
evidence in the record.
II.

LAY WITNESS TESTIMONY
A.

Applicable Law

An ALJ must consider lay witness testimony concerning a claimant’s ability to
work. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). Such testimony cannot be
disregarded without providing specific reasons that are germane to each witness. Stout v.
Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). “Inconsistency with medical
evidence is one such reason.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).
“Germane reasons for rejecting a lay witness’ testimony [also] include inconsistencies between
that testimony and the claimant’s presentation to treating physicians or the claimant’s activities,

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and the claimant’s failure to participate in prescribed treatment.” Barber v. Astrue, No. 10–1432,
2012 WL 458076, at *21 (E.D. Cal. Feb. 10, 2012).
B.

Application of Law to Fact

The ALJ gave social worker Jeremy Springer’s opinion only “some” weight, because he
was not an acceptable medical source and his opinion was inconsistent with the record as a
whole. While Mr. Springer is not an acceptable medical source, he is an “other source” under the
Act, and his opinion must be considered. 20 C.F.R. § 404.1513(d)(1). The ALJ clearly
considered Mr. Springer’s opinion, and did not err by giving it only “some” weight. (Tr. 39.)
The ALJ gave Mr. Springer’s opinion limited weight because it was inconsistent with
Spain’s testimony, current volunteer efforts, and past work history. (Id.) Spain volunteers twenty
hours per week at a Habitat for Humanity ReStore, and was able to sustain employment at
Wendy’s for four years. These facts contradict Mr. Springer’s opinion that Spain “would [not]
respond well to criticism from supervisors and would likely come to avoid the work setting
altogether, or be triggered into a depressive or hypomanic episode which would further
negatively impact her work.” (Tr. 690.) The ALJ was correct that Spain has demonstrated her
ability to function effectively in a work-like setting, and the ALJ did not err in assigning limited
weight to Mr. Springer’s opinion in light of this contradiction. See Crosby v. Comm’r of Soc.
Sec. Admin., 489 Fed. App’x. 166, 168 (9th Cir. 2012) (a claimant’s ability to work concurrently
with longstanding conditions is a clear and convincing reason to doubt the claimant’s
credibility).
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III.

Medical Evidence
A.

Applicable Law

“There are three types of medical opinions in social security cases: those from treating
physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc.
Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citing Lester v. Chater, 81 F.3d 821, 830 (9th
Cir. 1995)). In the event “a treating or examining physician’s opinion is contradicted by another
doctor, the ALJ must determine credibility and resolve the conflict.” Id. (quoting Thomas, 278
F.3d at 956-57). “An ALJ may only reject a treating physician’s contradicted opinions by
providing specific and legitimate reasons that are supported by substantial evidence.” Ghanim v.
Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d
1194, 1198 (9th Cir. 2008)).
“An ALJ can satisfy the ‘substantial evidence’ requirement by setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Merely stating conclusions, however, is
insufficient: “The ALJ must do more than state conclusions. He must set forth his own
interpretations and explain why they, rather than the doctors’, are correct.” Id. “[A]n ALJ errs
when he rejects a medical opinion or assigns it little weight while doing nothing more than
ignoring it, asserting without explanation that another medical opinion is more persuasive, or
criticizing it with boilerplate language that fails to offer a substantive basis for his
conclusion.” Id. at 1012-13 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)).
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B.

Application of Law to Fact

Spain argues that the ALJ failed to offer legally sufficient reasons for rejecting the
opinion of Dr. Alvord, her examining psychologist. Dr. Alvord’s opinion conflicts with the
opinions of the non-examining state agency medical consultants, and therefore the ALJ was
required to provide specific and legitimate reasons for assigning limited weight to Dr. Alvord’s
opinion. Batson, 359 F.3d at 1195. The ALJ met the required standard.
The ALJ applied “little” weight to Dr. Alvord’s opinion because he based his opinion
primarily on inaccurate information provided by Spain during the examination. (Tr. 38.)
Concluding that a medical opinion is based on unreliable information is a specific and legitimate
reason for giving less weight to that medical opinion, and the ALJ’s conclusion here is supported
by substantial evidence in the record. See, e.g., Tommasetti, 533 F.3d at 1041 (holding that an
ALJ may reject a physician’s opinion based primarily on a plaintiff’s discredited subjective
symptom statements).
Dr. Alvord submitted a letter to the Appeals Council attempting to refute the ALJ’s
reasons for giving his opinion little weight. (Tr. 700.) Addressing the ALJ’s finding that Spain
had misrepresented her employment history, Dr. Alvord explained that:
Ms. Spain’s failure to endorse a history of consistent occupational functioning is
likely a reflection of her level of distress during the encounter, which is consistent
with chronic posttraumatic stress disorder (especially in a situation where she is in
the presence of an authority figure).
(Tr. 700-01); but see Weetman v. Sullivan, 877 F.2d 20, 23 (9th Cir. 1989) (noting that a doctor’s
“opinion is all the less persuasive since it was obtained by [the claimant] only after the ALJ
issued an adverse determination”).
Dr. Alvord’s post hoc analysis attempting to explain Spain’s lack of candor during the
examination is not supported by the record. For example, Spain’s PTSD did not appear to affect
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her memory in interviews with Dr. Cooley or with the ALJ, who are both authority figures. At
her interview with psychologist Dr. Cooley in connection with her criminal case, Spain was
cooperative and accurately recalled a detailed job history. (Tr. 284.) Furthermore, that interview
showed that Spain was cooperative with the police and remembered fifteen different businesses
at which she had written fraudulent checks in recent months. (Tr. 279.) At the administrative
hearing in front of the ALJ, Spain also accurately recalled her job history. (Tr. 62-65.) These
were all stressful situations in front of authority figures, yet Spain was able accurately to recall
relevant events with clarity. The record refutes Dr. Alvord’s post-hearing assessment that Spain’s
PTSD, or distress caused by authority figures, caused her to misrepresent her job history.
In addition to misrepresenting her employment history during her examination with Dr.
Alvord, Spain was less than credible on other topics. For example, she reported to Dr. Alvord
that she had suicidal thoughts and described symptoms of hypomania, yet she did not endorse
suicidal thoughts to Judy Vogelsang, a counselor, in over one year of counseling sessions (Tr.
403-43), and did not report suicidal thoughts to Jeremy Springer, her social worker of over one
year. (Tr. 598-617.) Further, Spain told Dr. Alvord that she was afraid to leave the house and
suffered from social anxiety (Tr. 625), yet the record reflects that she walked dogs, babysat
children for pay (Tr. 406), and attended group therapy. (Tr. 431-35, 437-39.) In addition, she told
the Office of Vocational Rehabilitation that she wanted a job where she could “answer phones,
greet people and maybe show people where things are” (Tr. 264), and the rehabilitation
counselor noted that Spain was “good with people.” (Tr. 269.) Substantial evidence supports the
ALJ’s conclusion that Dr. Alvord’s opinion was based in large part on Spain’s lack of credibility
during the interview.

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The ALJ gave specific and legitimate reasons for assigning little weight to Dr. Alvord’s
opinion, and those reasons were supported by substantial evidence in the record. To the extent
other reasons asserted by the ALJ were in error, the Court finds that any such error is harmless.
Batson, 359 F.3d at 1197.1
CONCLUSION
Based on the foregoing, the Court AFFIRMS the Commissioner’s decision denying
Spain’s application for benefits.
DATED this 8th day of February, 2017.

_____________________________
Stacie Beckerman
United States Magistrate Judge

1

Spain’s arguments that the Commissioner did not meet her burden at Step Five are
based upon the same arguments already rejected by the Court herein.
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