Mowdy v. Commissioner Social Security Administration
OPINION & ORDER: The decision of the Commissioner is AFFIRMED. Signed on January 4, 2017 by Judge Robert E. Jones. (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
WENDY L. MOWDY,
CAROLYN W. COLVIN, Acting Commissioner of)
OPINION AND ORDER
Plaintiff Wendy Mowdy appeals the Commissioner's decision to deny her application for
supplemental security income under Title XVI of the Social Security Act. The court has jurisdiction
under 42 U.S.C. § 405(g). I AFFIRM the Commissioner's decision.
Mowdy alleged disability beginning in April 2003 due to degenerative disc disease of the
lumbar region of the spine, bilateral carpal tunnel syndrome, ulnar neuropathy, right medial
epicondylitis, asthma, obesity, major depression, generalized anxiety disorder, panic disorder,
posttraumatic stress disorder (PTSD), and personality disorder. Admin. R. 13. The ALJ applied the
sequential disability determination process set forth in the regulations and described in Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). The ALJ found thatMowdy's impairments adversely affected
1 - OPINION AND ORDER
her ability to perform basic work activities.
Admin. R. 13-14.
He found that, despite her
impailments, Mowdy retained the residual functional capacity (RFC) to perform a range of light
work involving limited reaching, crawling, and climbing, provided she had the option to change
between sitting and standing. The ALJ found Mowdy' s mental impairments limited her to unskilled
work involving only simple job-related decisions, only occasional interactions with others, and few
workplace changes. In addition, the ALJ found Mowdy could not perfo1m fast paced, production
type work. Admin. R. 16.
The vocational expert (VE) testified that a person having Mowdy' s RFC and vocational
factors would be able to perform light unskilled occupations such as photocopy machine operator,
hand packager, and electronics worker, which represent over 200,000 jobs in the national economy.
Admin. R. 23, 64. The ALJ concluded that Mowdy was not disabled within the meaning of the
Social Security Act. Adm in. R. 23.
STANDARD OF REVIEW
The district court must affom the Commissioner's decision if it is based on proper legal
standards and the findings of fact are supported by substantial evidence in the record as a whole.
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Substantial evidence is relevant
evidence that a reasonable person might accept as adequate to supp01t a conclusion. Richardson v.
Perales, 402 U.S. 389, 401 (1971). Substantial evidence may be less than a preponderance of the
evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Under this standard, the
court must consider the record as a whole, and uphold the Commissioner's factual findings that are
supported by inferences reasonably drawn from the evidence even if another interpretation is also
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rational. Robbins, 466 F.3d at 882; Batson v. Comm 'r a/Soc. Sec. Adm in., 359 F.3d 1190, 1193 (9th
Cir. 2004); Andrews v. Shalala, 53 F.3d 1035, 1039 --40 (9th Cir. 1995).
ASSIGNMENTS OF ERROR
The claimant bears the burden of showing that the ALJ erred and that any error was harmful.
lvfcLeod v. Astrue, 640 F.3d 881, 886-87 (9th Cir. 2011). Mowdy contends the ALJ failed to give
sufficient weight to the opinion of Wayne Taubenfeld, Ph.D., and failed to credit the lay witness
statements submitted by her friends. Mowdy argues that these errors led the ALJ to assess her RFC
in a manner that did not accurately reflect all of her functional limitations and to elicit testimony
from the vocational expert based on faulty hypothetical assumptions.
Dr. Taubenfeld's Opinion
In November 2011, Dr. Taubenfeld evaluated Mowdy with a clinical interview, standardized
tests ofintelligence, achievement, and memory, and inventories of subjective depression and anxiety
symptoms. Admin. R. 304. Mowdy's test scores were in the low average range for intellectual
functioning and academic achievement. She scored in the average range for memo1y functioning.
On tests of attention, Mowdy scored in the average range with a "good ability at tasks that require
a great deal of attention." Admin. R. 311. On a multiaxial inventmy of emotional functioning,
Mowdy answered in a manner that suggested a personality disorder with negativistic traits, major
depression, and a generalized anxiety disorder. Admin. R. 312. On the Beck inventories, Mowdy's
responses suggested mild depression and moderate anxiety. Admin. R. 314.
Dr. Taubenfeld opined that Mowdy's emotional and social functioning presented greater
barriers to employment than her level of intellectual functioning. Admin. R. 315. Dr. Taubenfeld
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said that people with the personality type suggested by Mowdy's responses generally are not suited
for fast paced work with time pressure and have limited social ability to interact appropriately with
coworkers, supervisors and members of the public. Dr. Taubenfeld said people with negativistic
traits are not good team players and would benefit from flexible scheduling to accommodate a
tendency to be late. Admin. R. 317,
The ALJ gave Dr. Taubenfeld's opinion significant weight and incorporated much of it into
his RFC assessment by precluding fast paced work, limiting work that requires frequent interactions
with others, and including only unskilled work involving simple decision making and few workplace
changes. Admin. R. 16, 21. Thus, the ALJ' s RFC assessment reasonably accounted for most of the
limitations in Dr. Taubenfeld's opinion. The ALJ acknowledged that Mowdy might not be able to
work well on a team, but discounted the opinion to the extent it suggested she could not, at least on
an occasional basis, engage in appropriate interactions at work. The ALJ also discounted Dr.
Taubenfeld's opinion to the extent it suggested that Mowdy would not be able to get to work on time
within no1mal tolerances.
An ALJ may discount an examining physician's opinion ifthe ALJ offers a clear, specific
and legitimate explanation based on findings supported by substantial evidence in the record as a
whole. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); Bayliss v. Barnhart, 427 F.3d 1211,
1216 (9th Cir. 2005); Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002).
Here the ALJ gave lesser weight to some of Dr. Taubenfeld's conclusions which were too
general and nonspecific to be useful in formulating voc·ational limitations. Admin. R. 21. For
example, Dr. Taubenfeld's opinion did not specify how the suggested tendency to be late would
manifest itself in terms of frequency and degree oflateness. In addition, Dr. Taubenfeld's opinion
4 - OPINION AND ORDER
does not indicate the likelihood that a person with Mowdy' s scoring pattem would demonstrate a
tendency to be late. With such a vaguely defined limitation, Dr. Taubenfeld' s opinion does not show
how Mowdy' s test scores suggesting negativistic personality traits translated into a specific
functional limitation that would preclude her from perf01ming a specific work-related activity. The
ALJ reasonably concluded that the nonspecific conclusion failed to establish a functional limitation
that could be included in Mowdy's RFC. Other examples of vagueness in Dr. Taubenfeld's opinion
suggest uncertainty on his pmi, including his opinion that Mowdy "may have difficulties getting
along" with people and "might react to supervision that is rigid and hostile." Admin. R. 317. The
ALJ properly relied on other evidence regarding Mowdy's ability to comply with a schedule and
interact with others and gave diminished weight to Dr. Taubenfeld's uncertain, nonspecific
The ALJ found Dr. Taubenfeld's opinion ofMowdy's social limitations inconsistent with
other evidence in the record.
For example, an investigation by the Cooperative Disability
Investigations Unit found ample evidence that Mowdy was very social in her apmiment complex and
her living arrangements, contrmy to Dr. Taubenfeld's conclusion that she would have difficulty ·
interacting appropriately with others. Admin. R. 346-349. The ALJ properly relied on this,
Mowdy' s reported daily activities, and her work history to conclude that she was not as limited in
her social functioning as Dr. Taubenfeld suggested. Admin. R. 22.
In addition, the ALJ gave great weight to the opinions of Robe1i Herny, Ph.D. and Paul
Rethinger, Ph.D., who are agency disability expe1is. Adm in. R. 21. They reviewed the entire record,
including Dr. Taubenfeld's report, and offered expe1i opinions regarding Mowdy's mental
impairments and functional limitations. In July 2012, Dr. Henry found Mowdy' s ability to conform
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to a schedule within normal tolerances not significantly limited. Admin. R. 78. He found the record
supported an RFC limited to simple routine tasks, but found no support for social limitations.
Admin. R. 74. In December 2012, Dr. Rethinger reviewed the entire record again and found
evidence ofmild difficulties in maintaining social functioning and moderate difficulties maintaining
concentration, persistence or pace. AdII]in. R. 89. In tenns ofMowdy's functional capacity, Dr.
Rethinger found neither her ability to confotm to a n01mal work schedule nor her ability to engage
appropriately in social interactions significantly limited. Admin. R. 90-91.
An ALJ may not rely solely on the opinion of a non-examining physician to reject an
examining or treating physician's opinion. The opinions of non-examining sources may constitute
substantial evidence, however, when consistent with the record as a whole. Tonapetyan, 242 F. 3d
at 1149. An ALJ may give greater weight to the opinions of non-examining physician when the
examining physician's opinion relies largely on the subjective complaints of the plaintiff.
Tonapetyan, 242 F. 3d at 1149. Here, Dr. Taubenfeld appeared to rely on Mowdy's subjective
reporting, while the opinions of Dr. Henry and Dr. Rethinger were more consistent with the record
as a whole. I find no enor in the ALJ's evaluation of Dr. Taubenfeld's opinion.
Lay Witness Statements
Mowdy next contends the ALJ improperly evaluated two lay witness statements. In one
undated statement, signed by Mowdy's brother-in-law David Archer, Mr. Archer said Mowdy
sporadically had "violent outbreaks" without apparent reason. He said that during these episodes,
which would happen "constantly out of the blue," Mowdy would throw objects and threaten people.
Admin. R. 241. In the other lay witness statement, Mowdy' s boyfriend James Hanis said that
Mowdy had difficulty comprehending and retaining reading material and had an extremely bad
6 - OPINION AND ORDER
temper with bouts of violent behavior. Admin. R. 242. The ALJ considered these statements and
gave them some weight in his decision, but found that the record did not support the level of
impahment they suggested. Admin. R. 21-22.
An ALJ must consider the statements of a lay witness, but may discount them for reasons
germane to the witness. Valentine v. Comm 'r ofSoc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).
The ALJ' s reasons must be supported by substantial evidence, but may appear anywhere in the
decision without being tied directly to the evaluation of the lay witness statement. Lewis v. Apfel,
236 F.3d 503, 512 (9th Cir. 2001).
Here, the ALJ identified evidence that contradicted the lay witness statements. For example,
Mr. Hanis's statement that Mowdy could not comprehend or retain reading material was
contradicted by Dr. Taubenfeld's objective testing which showed her intellectual functioning in the
low average range and her memoty a relative strength. Admin. R. 21. Other medical reports showed
that Mowdy "was friendly and cooperative during the interview;" "her thought process was logical
and goal-directed", and that she was alert and able to fully concentrate. Admin. R. 431. The CDIU
rep01t included statements from Mowdy's neighbors who said she was friendly and social, with a
tendency to use inappropriate language in casual social settings, but no mention of violent outbursts.
Admin. R. 347. This evidence directly contradicts the lay witness statement that she experienced
constant uncontrollable outbursts and rationally supports the ALJ' s conclusion that the lay witnesses
overstated the level of Mowdy' s impairment.
The lay witness statements adopted limitations Mowdy described in her own subjective
complaints. Accordingly, the lay witness statements are susceptible to the same reasoning the ALJ
provided in discounting Mowdy's credibility. See 1\Iolina v. Astrue, 674 F.3d 1104, 1117-18 (9th
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Cir. 2012) (ALJ's well-supported reasons for rejecting the claimant's testimony apply equally well
to lay witness testimony describing the same limitations). The ALJ discounted Mowdy' s credibility
for well supported reasons, including that she made numerous contradict01y statements about her
symptoms, the medical evidence did not support the debilitating symptoms she claimed, her
treatment record did not show significant treatment for mental health or behavioral issues, the reports
of neighbors did not support her claimed symptoms, and she and her boyfriend filed
contemporaneous disability applications based on the same medical conditions. Admin. R. 17-19.
Notably, Mowdy does not challenge the adverse credibility determination and the ALJ's reasoning
provides an adequate basis for discounting the lay witness statements. Valentine, 574 F.3d at 694;
Lewis, 236 F.3d at 512.
Mowdy contends the ALJ elicited testimony from the VE based on hypothetical assumptions
that did not accurately reflect her functional limitations. The ALJ elicited the VE's testimony with
hypothetical assumptions that accurately reflected his assessment ofMowdy's RFC. Admin. R. 23,
62-64. The ALJ was not required to include the additional hypothetical limitations suggested by
Mowdy's counsel which the ALJ found unsuppotted by the record. Osenbrock v. Apfel, 240 F.3d
1157, 1163-65 (9th Cir. 2001). The VE testified that jobs exist in the national economy that a person
with Mowdy's RFC could perfo1m. Admin. R. 64. Because I find no e11'or in the ALJ's RFC
assessment, the hypothetical limitations posed to the VE were also free of error, and the VE' s
testimony satisfied the Commissioner's burden to show there are jobs that Mowdy can perfotm.
Andrews v. Shala/a, 53 F.3d at 1043.
8 - OPINION AND ORDER
Based on the foregoing, Mowdy' s claims of enor cannot be sustained and the
Commissioner's decision is AFFIRMED.
DATED this "If day of January, 2017.
Unite States District Court
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