Heflin-Buescher v. Commissioner Social Security Administration
Filing
30
OPINION & 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 11/3/16 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RAMONA R. HEFLIN-BUESCHER,
Case No. 6:15-cv-01875-PK
OPINION AND ORDER
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
PAPAK, Magistrate Judge:
Ramona R. Heflin-Buescher ("Plaintiff') seeks judicial review of the Commissioner of
Social Security's ("Commissioner") decision denying her application for Supplemental Security
Income ("SSI") under Title XVI of the Social Security Act ("Act"). This Court has jmisdiction
over Plaintiffs action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). I have considered the
parties' briefs and all evidence in the administrative record. For the reasons set forth below, the
Commissioner's final decision is AFFIRMED.
PROCEDURAL BACKGROUND
Plaintiff protectively filed an application for SSI on May 23, 2012, alleging disability
beginning January 1, 2008. Following a denial of benefits, Plaintiff requested a hearing before an
1 - OPINION AND ORDER
ALJ. On January 30, 2014, ALJ MaryKay Rauenzahn held a hearing. Plaintiff was represented
by counsel and testified, as did Vocational Expert ("VE") Mark McGowan. On March 21, 2014,
the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. The
Appeals Council denied review on August 7, 2015, and this action followed.
DISABILITY ANALYSIS
To establish disability within the meaning of the Act, a claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not
less than 12 months." 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step
sequential process for determining whether a claimant has made the requisite demonstration. See
Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. § 404.!520(a)(4). At the first
four steps of the process, the burden of proof is on the claimant; only at the fifth and final step
does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d I 094, I 098
(9th Cir. 1999).
At the first step, the ALJ considers the claimant's work activity, if any. See Bowen, 482
U.S. at 140; see also 20 C.F.R. § 416.920(a)(4)(i). If the ALJ finds that the claimant is engaged
in substantial gainful activity, the claimant will be found not disabled. See Bowen, 482 U.S. at
140; see also 20 C.F.R. §§ 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will proceed
to the second step.
At the second step, the ALJ considers the medical severity of the claimant's impairments.
See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is
"severe" if it significantly limits the claimant's ability to perform basic work activities and is
expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also
2 - OPINION AND ORDER
20 C.F.R. § 404.1520(c). The ability to perform basic work activities is defined as "the abilities
and aptitudes necessary to do most jobs." 20 C.F.R. § 404.152l(b); see also Bowen, 482 U.S. at
141. If the ALJ finds that the claimant's impairments are not severe or do not meet the duration
requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20
C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c). Neve1theless, it is well established that "the step-two
inquiry is a de minim is screening device to dispose of groundless claims." Smolen v. Chafer, 80
F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen, 482 U.S. at 153-54). "An impairment or
combination of impairments can be found 'not severe' only ifthe evidence establishes a slight
abnormality that has 'no more than a minimal effect' on an individual[']s ability to work." Id,
quoting Social Security Ruling ("SSR") 85-28, 1985 SSR LEXIS 19 (1985).
If the claimant's impairments are severe, the evaluation will proceed to the third step, at
which the ALJ determines whether the claimant's impairments meet or equal "one of a number
oflisted impairments that the [Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d). If the claimant's impairments are equivalent to one of the impairments enumerated
in20 C.F.R. § 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See
Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d).
If the claimant's impairments are not equivalent to one of the enumerated impairments,
between the third and the fourth steps the ALJ is required to assess the claimant's residual
functional capacity ("RFC"), based on all the relevant medical and other evidence in the
claimant's case record. See 20 C.F.R. § 404.1520(e). The RFC is an estimate of the claimant's
capacity to perform sustained, work-related physical and/or mental activities on a regular and
3 - OPINION AND ORDER
•
continuing basis, 1 despite the limitations imposed by the claimant's impairments. See 20 C.F.R.
§ 404.1545(a); see also S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996).
At the fourth step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §
416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can
still perform his or her past relevant work, the claimant will be found not disabled. See Bowen,
482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(a)(4)(iv), 404.1520(£). In
the event the claimant is no longer capable of performing his or her past relevant work, the
evaluation will proceed to the fifth and final step, at which the burden of proof shifts, for the first
time, to the Commissioner.
At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's age, education, and work experience to determine whether a person with those
characteristics and RFC could perform any jobs that exist in significant numbers in the national
economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g),
404.1560( c), 404.1566. If the Commissioner meets her b\U'den to demonstrate the existence in
significant numbers in the national economy of jobs capable of being performed by a person with
the RFC assessed by the ALJ between the third and fourth steps of the five-step process, the
claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§
404.1520(a)(4)(v), 404,1520(g), 404.1560(c), 404.1566. A claimant will be found entitled to
benefits ifthe Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at
142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g).
1
"A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." S.S.R.
No. 96-8p, 1996 SSR Lexis 5 (July 2, 1996).
4 - OPINION AND ORDER
LEGAL STANDARD
A reviewing court must affirm an Administrative Law Judge's decision if the ALJ
applied proper legal standards and his or her findings are supported by substantial evidence in
the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 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." Lingenfelter v. Astrue,
504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006)).
The court must review the record as a whole, "weighing both the evidence that supports
and the evidence that detracts from the Commissioner's conclusion." Id (quoting Reddick v.
Chafer, 157 F.3d 715, 720 (9th Cir. 1998)). The court may not substitute its judgment for that of
the Commissioner. See Id (citing Robbins, 466 F.3d at 882); see also Edlund v. Massanari, 253
F.3d 1152, 1156 (9th Cir. 2001). Moreover, the court may not rely upon its own independent
findings of fact in determining whether the ALJ' s findings are suppmted by substantial evidence
of record. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (citing SEC v. Chene1y
C01p., 332 U.S. 194, 196 (1947)). Variable interpretations of the evidence are insignificant ifthe
Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
If the ALJ's interpretation of the evidence is rational, it is immaterial that the evidence may be
"susceptible [of] more than one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750
(9th Cir. 1989) (citing Gallantv. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984)).
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 coutt, however, "cannot affirm the Commissioner's
5 - OPINION AND ORDER
decision on a ground that the Administration did not invoke in making its decision." Stout v.
Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a
comt may not reverse an ALJ's decision on account of an enor that is harmless. Id at 1055-56.
"[T]he burden of showing that an enor is harmful normally falls upon the patty attacking the
agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
SUMMARY OF ADMINISTRATIVE RECORD2
Plaintiff was 41 years old on her alleged onset date of January 1, 2008. Tr. 11.3 She
completed the ninth grade. Tr. 189. Prior to her claimed disability onset date, Plaintiff worked as
a truck driver and construction flagger. Id. Plaintiff alleges that she is unable to work due to
neuropathy, initable bowel syndrome ("IBS"), depression, anxiety, diabetes, and high blood
pressure. Tr. 188.
I. The Medical Record
The patties are familiar with the medical record. Therefore, it will be set out herein only
as necessary.
II. The Hearing Testimony
On January 30, 2014, ALJ Rauenzahn held a hearing in connection with Plaintiffs
application for SSL Tr.32-65.
Plaintiff testified that she was 47 years old and lived at home with four children. Tr. 3536. She had a driver's license, but voluntai·iiy chose not to drive because she could not feel her
feet and her vision had deteriorated. Tr. 36. She testified that she could read and write, and
2
The following recitation constitutes a summary of the evidence contained within the Administrative Record, and
does not reflect any independent finding of fact by the comi.
3
Citations to "Tr." Refer to the page(s) indicated in the official transcript of the Administrative Record filed herein
as Docket No. 11.
6 - OPINION AND ORDER
completed the ninth grade. Tr. 37. Plaintiff ran a trucking company for "a few years," during
which she "did all the billing, the payroll, dispatched and I drove bobtail." Tr. 38.
Plaintiff stated that she chose Januaiy I, 2008 as her disability onset date because her
neuropathy and depression began affecting her ability to stand, sleep, and sit still. Tr. 37. When
asked why she could not perform a "sit down job," Plaintiff stated that she had difficulty
functioning in daily life. Tr. 38. She futiher stated that the "idea of leaving [her] house makes
[her] very sick," and upset. Tr. 39. When asked why she ceased her therapy appointments, she
repotied that her therapist retired and the idea of finding a new therapist was too daunting. Id
Plaintiff stated that she is frequently noncompliant with her medication regimen because
she "has a hard time taking [her] medicine" and felt like her medications were ineffective. Id.
She stopped smoking marijuana one month before the hearing, and before that smoked an ounce
every three weeks. Id Plaintiff testified that she stopped taking her narcotic medications because
they made her feel sick. Tr. 40. The ALJ pointed out that the medical records showed that
Plaintiffs doctor refused to prescribe her more narcotic medication because Plaintiff was
smoking marijuana. Id. The ALJ further pointed out that Plaintiff checked in to an emergency
room in an attempt to receive narcotic medication. Id. Plaintiff argued that she did not attempt to
"get pain pills," and became upset when she was offered narcotic medication. Id.
Plaintiff testified that she tried to exercise with her son twice a week in her garage. Id.
She stated that she had problems with night tetTors and sleeping in general. Tr. 41. She wore a
knee brace, and had not received treatment for her "trick knee" other than an MRI in August
2012. Id. She testified that she could not walk more than a block without stopping to rest, and
could stand for five to ten minutes in the kitchen or grocery store. Id. She stated that she could
lift up to 20 pounds, lift her arms above her head, rarely bend over to pick something up off the
7 - OPINION AND ORDER
ground, never crouch, kneel, or open jars with her hands, and slowly climb one flight of stairs.
Tr. 43.
Plaintiff testified that she sleeps for 16 to 18 hours per day and watches television for the
remainder of the day, and her children perform most of the household chores. Tr. 45. She stated
that she could not read because her vision had deteriorated. Id Plaintiff cared for two homeless
children in addition to her two biological children. Tr. 46.
ALJ FINDINGS
At the first step of the five-step sequential evaluation process, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since May 23, 2012, the application date.
Tr. 13.
At the second step, the ALJ found that Plaintiffs suffered from the following severe
impairments: diabetes mellitus, neuropathy in bilateral feet, hype1tension, gastroesophageal
reflux disorder, asthma, anxiety disorder versus posttraumatic stress disorder, depression,
insomnia, degenerative joint disease of the left knee, obesity, and methamphetamine addiction in
cunent remission. Id The ALJ found that Plaintiffs IBS, vision problems, and neuropathy in her
hands were not severe impairments. Tr. 13-14.
At the third step, the ALJ concluded that Plaintiff's impairments do not meet or equal the
criteria for any condition in the Listing ofimpairments, 20 C.F .R. Pt. 404, Subpt. P, App. I. Id.
The ALJ found that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. §
416.967(b), except:
[s]he can stand and walk two hours in an eight-hour workday; occasionally climb
stairs and ramps; camtot climb ladders, ropes or scaffolds; and can occasionally
stoop and crouch. She camtot kneel or crawl; and can frequently, not constantly,
bilaterally handle and finger. She should have no concentrated exposure to
extreme cold or vibrations; no exposure to workplace hazards such as unprotected
heights or dangerous machinery; no exposure to dust, fumes or gasses in
8 - OPINION AND ORDER
concentrations greater than those generally found in the ordinary office
environment; and should not be required to ambulate over uneven surfaces. She is
able to understand, remember and carry out only simple instructions that can be
learned in 30 days or less; can have occasional public contact and occasional
coworker contact, with no group tasks/ she should be permitted to sit and stand as
needed for com£01t while remaining on task; and be permitted one to two ordinary
batlll'oom breaks per day in addition to access during normal breaks.
Tr. 15.
At the fourth step, the ALJ concluded that Plaintiff was unable to perform any past
relevant work. Tr. 22. However, at step five, the ALJ found jobs exist in significant numbers in
the national economy that Plaintiff can perform, including assembler of small products,
electronics assembler, and computer controlled color photograph printer operator. Tr. 23. As a
result, the ALJ concluded Plaintiff has not been disabled from January 1, 2008, through the date
of her decision. Id.
DISCUSSION
Plaintiff argues the ALJ erred by failing to: (1) provide clear and convincing reasons to
reject Plaintiffs subjective symptom testimony; (2) find Plaintiffs IBS a "severe" impairment;
(3) credit the lay witness testimony; and (4) prove that Plaintiff retains the ability to perform
"other work" in the national economy.
I.
Subjective Symptom Testimony
When evaluating the credibility of a plaintiffs testimony regarding the severity and
limited effect of the plaintiffs symptoms, the ALJ must engage in a two-step analysis.
Lingenfelter, 504 F.3d at 1035-36. "First, the ALJ must determine whether the [plaintiff] has
presented objective medical evidence of an underlying impaitment which could reasonably be
expected to produce the pain or other symptoms alleged." Id. at 1036 (internal citations and
quotation marks omitted); 20 C.F.R. §§ 404.1529, 416.929. The plaintiff is not required to show
9 - OPINION AND ORDER
that her impairment "could reasonably be expected to cause the severity of the symptom she has
alleged; she need only show that it could reasonably have caused some degree of the symptom."
Id. (quoting Smolen, 80 F.3d at 1282). If the plaintiff meets the first test and there is no evidence
of malingering, the ALJ can only reject the plaintiffs testimony about the severity of the
symptoms if she gives "specific, clear and convincing reasons" for the rejection. Id. To support a
lack of credibility finding, the ALJ is required to "point to specific facts in the record which
demonstrate that [the plaintiff] is in less pain than she claims." Dodrill v. Shala/a, 12 F.3d 915,
918 (9th Cir. 1993).
The ALJ did not find evidence of malingering; therefore, the ALJ was required to give
clear and convincing reasons for doubting Plaintiffs subjective symptom testimony.
A. Noncompliance with Recommended Treatment
The ALJ doubted Plaintiffs subjective symptom testimony because she failed to comply
with treatment recommendations from her physicians. An ALJ may rely on a plaintiffs
"unexplained or inadequately explained failure to seek treatment or to follow a prescribed course
of treatment" to doubt her subjective testimony. Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir.
2012) (quoting Tommasetti vAstrue, 533 F.3d 1035, 1039 (9th Cir. 2008)). Plaintiff ignored her
physicians' prescribed dietary and exercise lifestyle changes relating to her diabetes. Tr. 16.
Plaintiff argues that she"[did] not know what a diabetic diet [was]," as evidenced by her fruit
based diet in August, 2011. Tr. 368-69. However, the record shows that upon her diabetes
diagnosis in May, 2008, her physician "discussed diabetes at length today and the importance for
a diabetic diet and exercise." Tr. 283. Plaintiff further argues that her lack of insurance prevented
her from complying with diet and exercise recommendations. This argument is unpersuasive, as
I 0 - OPINION AND ORDER
Plaintiff knew her doctors' recommendations and insurance has little effect on exercise and diet
changes.
Additionally, Plaintiff failed to consistently check her blood sugars, against the
recommendations of her physicians. Tr. 349-50, 370, 396, 430. Plaintiff argues that she lost her
insurance and could not afford test strips and medical appointments, and should not be
discredited for failing to comply with a treatment course she could not afford. Orn v. Astrue, 495
F.3d 625, 638 (9th Cir. 2007). The record demonstrates that Plaintiff lost her insurance from
November, 2011 to January, 2012, and she could not otherwise afford her medications in July,
2010. Tr. 360, 362, 400. However, many instances of noncompliance occur on dates when
Plaintiff had insurance and could afford her medication. Tr. 360, 370, 396. Therefore, the ALJ
did not err to the extent that she relied on Plaintiffs noncompliance on dates coinciding with her
ability to afford treatment.
As further evidence of Plaintiffs noncompliance with her physicians' recommendations,
the ALJ noted that Plaintiff smoked marijuana regularly, despite suffering from asthma. Indeed,
Dr. Lana Gee-Gott, Plaintiffs physician, opined that her asthma was significantly worse at the
same appointment she noted that Plaintiff began smoking marijuana daily. Tr. 379-80.
Plaintiff argues that her emotional distress, anxiety, and depression prevented her from
effectively managing her health conditions. However, this notion strains credulity. Plaintiff
remained complaint with several medication regimens during emotionally turbulent times, and
rep01tedly self-medicated with marijuana daily.
The ALJ did not err in relying on Plaintiffs many instances of noncompliance to doubt
her subjective symptom testimony.
11 - OPINION AND ORDER
B. Inconsistencies Between Plaintiffs Testimony and the Record
The ALJ noted several discrepancies between Plaintiffs testimony and the record. An
ALJ may use contradictions between a plaintiffs testimony and the medical record to reject the
plaintiffs subjective testimony. Carmickle v. Comm 'r ofSoc. Sec. Admin., 533 F.3d 1155, 1161
(9th Cir. 2008). On November 18, 2012, Plaintiffrep01ied to an emergency room and requested a
refill of methadone, which she stated she had been taking for two years. Tr. 545. However, the
record indicates that Plaintiff was prescribed methadone once, in 2010, and the prescription was
for a single occasion. Tr. 401. While the ALJ stated that Dr. Gee-Gott never prescribed Plaintiff
methadone, that error is harmless as the thrust of the ALJ' s argument remains true. The ALJ did
not err in identifying this discrepancy.
The ALJ also noted that while Plaintiff reported that her agoraphobia confined her to her
home, she was able to take a bus and walk to the hearing without difficulty. Tr. 21. Plaintiff
argues that agoraphobia is a condition that relies on self-reporting, and both lay witnesses
indicated that Plaintiff does not leave the house to shop. Tr. 216, 258. However, Plaintiff was
able to ride public transportation to the hearing and regularly attends medical appointments.
While Plaintiffs argument is not wholly unsupported, the ALJ' s interpretation was rational and
therefore cannot be overturned. See Tackett, 180 F.3d at 1098 ("If the evidence can support
either outcome, the court may not substitute its judgment for that of the ALJ .").
Plaintiff stated that she voluntarily chose to wean herself off pain medication, but the
ALJ noted that Plaintiff actually stopped using pain medication because Dr. Gee-Gott terminated
the doctor-patient relationship. Tr. 18. The ALJ's interpretation is supported by the record, which
reflects that Plaintiff ceased using Morphine in November and December of2012 because she
could not obtain a prescription refill, not because she chose to wean herself off the medication.
12 - OPINION AND ORDER
Tr. 553. That interpretation is further supported by a third patty function report, completed in
December 2012, wherein Plaintiffs daughter stated that she "is withdrawing off of 90 mg of
morphine a day because her primary care doctor dropped her cold." Tr. 262.
The ALJ also stated that Plaintiff was dismissed from Dr. Gee-Gott's practice due to
noncompliance issues. Tr. 18, 20. However, this is unsupported by the record. There is no direct
evidence establishing the reason Dr. Gee-Gott terminated the doctor-patient relationship.
The ALJ did not err in identifying several inconsistencies between Plaintiff's testimony
and the record. Although ALJ erred in relying on Plaintiff's dismissal from Dr. Gee-Gott's
medical practice, that error was harmless. Carmickle, 533 F.3d at 1162-63.
C. Plaintiff's Activities
The ALJ impugned Plaintiff's subjective symptom testimony, finding her daily activities
were inconsistent with her alleged level of disability. Inconsistency between a plaintiff's
testimony and her activities of daily living is a clear and convincing reason to discredit her
subjective symptom testimony. Tommasetti, 533 F.3d at 1039. The ALJ noted that Plaintiff
allowed two homeless youths to live in her home, in addition to her two biological children. Tr.
36, 45. She also provided babysitting services for her grandchild and the child of a friend. Tr. 18.
These activities generally refute Plaintiff's contention that she sleeps for 16 to 18 hours per day
and is incapable of performing household chores. Additionally, I note that Plaintiff reported to
her psychiatrist that she "does not feel appreciated for all she does for the family," fmther
contradicting Plaintiff's testimony that she is completely disabled. Tr. 428.
The ALJ stated that Plaintiff's symptom testimony was inconsistent with her statement
that she was able to "hang out and watch movies everyday" with her friend. This is erroneous, as
watching television is an undemanding activity that has no meaningful relationship to workplace
13 - OPINION AND ORDER
activities. Orn, 495 F.3d at 639. However, this error was harmless, as the ALJ provided other
inconsistencies between Plaintiffs daily activities and her testimony. Carmickle, 533 F.3d at
1162-63.
Finally, the ALJ doubted Plaintiffs subjective testimony due to her "tenuous connection
to the workforce with a minimal work history even before her alleged onset of disability." Tr. 17.
A plaintiffs poor work history is a clear and convincing reason to doubt her subjective
testimony. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (the plaintiffs "extremely
poor work history" and the fact that she "has shown little propensity to work in her lifetime"
weighed against her subjective testimony).
For all the foregoing reasons, the ALJ gave clear and convincing reasons to doubt
Plaintiffs subjective symptom testimony. An ALJ's overall subjective symptom decision may be
upheld even if all reasons are not clear and convincing, so long as some clear and convincing
reasons remain. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).
II.
Failure to Consider JBS a Severe Impairment
At step two, the ALJ must consider the medical severity of plaintiffs impairments. See
Bowen, 482 U.S. at 140-141 (1987); see also 20 C.F.R. § 419.920(a)(4)(ii). An impairment is
"severe" ifit significantly limits the plaintiffs ability to perform basic work activities and is
expected to continue for a period of twelve months or longer. Bowen, 482 U.S. at 141. A person
who is able to perform basic work activity possesses the "abilities and aptitudes necessary to do
most jobs." Id. If the ALJ finds that the plaintiffs impairments are not severe or do not meet the
duration requirement, the plaintiff will be found not disabled under the meaning of the Act. Id
However, if the ALJ determines that the plaintiff does indeed suffer from a severe impairment,
the ALJ will proceed with the next steps of the evaluation. 20 C.F.R. § 416.920(a)(4)(ii-iii);
14 - OPINION AND ORDER
Burch, 400 F.3d at 679. At step two, a claim will be rejected only ifthe evidence establishes that
the plaintiffs impairments establish only a slight abnormality that has no more than a minimal
effect on an individual's ability to work. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005);
S.S.R. 96-3p. Accordingly, the step-two inquiry is merely a de minimus screening device to
dispose of groundless claims. Smolen, 80 F.3d at 1290 (citing Bowen, 482 U.S. at 137, 153-54).
Plaintiff alleges that her IBS should be considered a severe impairment at step two. "A
physical or mental impairment must be established by medical evidence consisting of signs,
symptoms, and laboratory findings, not only by [a plaintiffs] statement of symptoms. 20 C.F.R.
§ 416.908; see Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (A plaintiffs symptoms
alone cannot establish a severe impairment. Symptoms "are an individual's own perception or
description of the impact of his or her physical or mental impairment(s)"). While Plaintiff
consistently references her dianhea throughout the record, a colonoscopy, endoscopy, and stool
samples were all negative for colitis or IBS. Tr. 290. Plaintiffs treating physician, Dr. Mark
Litchman, diagnosed her with IBS as a diagnosis of exclusion. Tr. 289. However, due to a dea1ih
of objective diagnostic findings and the sole source of evidence being Plaintiffs statements of
symptoms, the ALJ declined to find Plaintiffs IBS a severe impairment. Tr. 13. Additionally, the
ALJ noted that Plaintiff complained of severe diarrhea in July, 2012, but gained eight pounds by
August, 2012. Tr. 13. The ALJ also noted that the record failed to show the array of symptoms
commonly associated with severe dianhea, such as dehydration, malnutrition, or inability to keep
food down. Tr. 13. An ALJ is "entitled to draw inferences logically flowing from the evidence,"
and the ALJ's interpretation of the record was rational. Macri v. Chafer, 93 F.3d 540, 544 (9th
Cir. 1996); Batson v. Comm 'r ofSoc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004).
15 - OPINION AND ORDER
III.
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); 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. Dodrill, 12 F.3d at 918-19. The ALJ
may not reject such testimony without comment and must give reasons germane to the witness
for rejecting her testimony. Nguyen v. Chafer, I 00 F.3d 1462, 1467 (9th Cir. 1996). However,
inconsistency with the medical evidence may constitute a germane reason. Lewis, 236 F.3d at
512. The ALJ may also reject lay testimony predicated upon the testimony ofa claimant properly
found not credible. Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009).
Claudia Jones, a family friend, completed an adult functional report on Plaintiff's behalf.
Tr. 213-219. Ms. Jones stated that she saw Plaintiff daily, and that they watched movies because
Plaintiff"can barely walk." Tr. 213. She stated that Plaintiff's friends and family helped her
dress, brushed her teeth and hair, changed her clothes, reminded her to take medication, and
helped with household chores. Tr. 214-15. Ms. Jones stated that Plaintiff left the house twice per
week, but she did not shop. Tr. 215-16. Additionally, Ms. Jones stated that Plaintiff"snap[ped] at
the small things," was short tempered, "space[d] out" frequently, had difficulty remembering and
concentrating, and maintained her balance poorly. Tr. 217-18.
Ashley Buescher, Plaintiff's daughter, also completed an adult functional repot1 on
Plaintiff's behalf. Ms. Buescher stated that she saw Plaintiff daily. Tr. 255. She also stated that
Plaintiff could barely walk, did not perform household chores, watched television, occasionally
read, and Ms. Buescher frequently reminded Plaintiff to bathe and brush her hair. Tr. 255-57.
Ms. Buescher and others shopped, paid bills, and drove for Plaintiff. Tr. 258. Additionally, Ms.
16- OPINION AND ORDER
Buescher stated that Plaintiff had difficulty concentrating, had no hobbies, did not handle stress
well, and had no social activities due to pain. Tr. 258-61.
The ALJ gave little weight to the lay witness evidence because both Ms. Jones and Ms.
Buescher gave their function reports during temporary aggravations of Plaintiff's conditions. Tr.
17. The temporal nature of lay witness testimony is a germane reason to give that testimony little
weight. See Cole v. Astrue, 295 Fed.Appx. 387, 389 (9th Cir. 2010). Ms. Jones provided her
report while Plaintiff suffered from a broken foot, which the ALJ noted could account for her
"inability to be mobile as desired, interfere with self-care and household chores, and potentially
exacerbate her mood." Tr. 17. Ms. Buescher provided her report while Plaintiff temporarily
suffered from the symptoms of opioid withdrawal after she stopped taking Morphine and
Fentanyl. Tr. 262. Because each lay witness gave their report while Plaintiff suffered from a
temporary aggravation of her symptoms, the ALJ did not err in giving those reports little weight.
IV.
Commissioner's Burden at Step Five
An ALJ must propose a hypothetical based on medical assumptions suppmted by
substantial evidence reflecting the plaintiff's limitations. See Osenbrockv. Apfel, 240 F.3d 1157,
1165 (9th Cir. 2001 ). However, an ALJ may omit any alleged limitations that the ALJ has found
to be not credible from the vocational hypothetical promulgated to the VE. Bayliss v. Barnhart,
427 F.3d 1211, 1217 (9th Cir. 2005); see also Magallanes, 881 F.2d at 756-57 (holding that it is
proper for an ALJ to limit a hypothetical to restrictions supported by substantial evidence in the
record).
Plaintiff argues that the Commissioner failed to correctly evaluate Plaintiff's claim at step
five of the disability process. However, Plaintiff's argun_ients are predicated on finding the ALJ
erred in her assessment of Plaintiff's subjective symptom testimony, as well as the lay witness
17 - OPINION AND ORDER
evidence. Because I decline to overturn the ALJ's assessments, Plaintiffs argument is
unpersuasive.
CONCLUSION
Because the Commissioner's decision is based on proper legal standards and suppo1ied
by substantial evidence, the Commissioner's final decision is AFFIRMED and this case
DISMISSED.
DATED this 3rd day ofNovember 2016.
Honorable Paul J. Papak ·
United States Magistrate Judge
18- OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?