Culver v. Commissioner Social Security Administration

Filing 24

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 05/15/2017 by Judge Anna J. Brown. See attached 24 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

AMANDA R. CULVER,
Plaintiff,

6:16-cv-00074-BR
OPINION AND ORDER

v.
NANCY A. BERRYHILL,1
Acting Commissioner, Social
Security Administration,
Defendant.

KATHERINE EITENMILLER
MARK A. MANNING
Harder Wells Baron & Manning, PC
474 Willamette Street
Eugene, OR 97401
[phone]
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]

1

Pursuant to Federal Rule of Civil Procedure 25(d), Nancy
A. Berryhill, who became Acting Commissioner of the Social
Security Administration on January 23, 2017, is automatically
substituted in place of Carolyn W. Colvin.
1 - OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
MICHAEL S. HOWARD
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104-7075
[phone]
Attorneys for Defendant

BROWN, Judge.
Plaintiff Amanda R. Culver seeks judicial review of a final
decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff’s applications for
Supplemental Security Income (SSI) and Disability Insurance
Benefits (DIB) under Titles XVI and II of the Social Security
Act.

This Court has jurisdiction to review the Commissioner’s

final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
Plaintiff filed applications for DIB on January 31, 2012,
and for SSI on January 9, 2012, and alleged a disability onset
date of March 19, 1980.

Tr. 37, 312, 314.2

Her applications

were denied initially and on reconsideration.

2

An Administrative

Citations to the official transcript of record filed by
the Commissioner on June 21, 2016, are referred to as “Tr.”
2 - OPINION AND ORDER

Law Judge (ALJ) held a hearing on June 10, 2014.

Tr. 60-123.

At

the hearing Plaintiff and a vocational expert (VE) testified.
Plaintiff was represented by an attorney.
On August 20, 2014, the ALJ issued an opinion in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 37-52.

On November 20, 2015, that decision

became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for review.

Tr. 1-4.

See

Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

BACKGROUND
Plaintiff was born on March 19, 1980.

Tr. 312, 314.

Plaintiff was 34 years old at the time of the hearing.
312, 314.

Plaintiff has a high-school diploma.

Tr. 60,

Tr. 346.

Plaintiff has past relevant work experience as a bus person,
stock clerk, hand-packager, and nurse assistant.

Tr. 50, 107.

Plaintiff alleges disability due to “learning and mental
disabilities” and back pain.

Tr. 345.

Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 40-50.

3 - OPINION AND ORDER

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate her

inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months.”
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner’s decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).

42

See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”

Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).

It is more than a mere scintilla [of evidence]

but less than a preponderance.
at 690).
4 - OPINION AND ORDER

Id. (citing Valentine, 574 F.3d

The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner’s decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. § 404.1520(a)(4)(I).

See also Keyser v.

Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairments or combination of impairments.
§ 404.1520(a)(4)(ii).
5 - OPINION AND ORDER

20 C.F.R.

See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 404.1520(a)(4)(iii).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

The

criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§ 404.1520(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

“A

‘regular and continuing basis’ means 8 hours a day, for 5 days a
week, or an equivalent schedule.”

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.

20 C.F.R. § 404.1520(a)(4)(iv).

See also Keyser, 648 F.3d at 724.

6 - OPINION AND ORDER

If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.

20 C.F.R. § 404.1520(a)(4)(v).

Keyser, 648 F.3d at 724-25.

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.

Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.

If the Commissioner meets this burden, the claimant

is not disabled.

20 C.F.R. § 404.1520(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff engaged in substantial
gainful activity from January 2000 through December 2004 and from
January 2007 through December 2007.

Tr. 39-40.

The ALJ,

however, continued the sequential disability evaluation because
the ALJ also found there had been “continuous 12-months period(s)
during which [Plaintiff] did not engage in substantial gainful
activity.”

Tr. 40.

At Step Two the ALJ found Plaintiff has the severe
impairments of post-traumatic stress disorder, panic disorder,
dysthymic disorder, borderline intellectual functioning,
7 - OPINION AND ORDER

attention-deficit disorder, left-knee patellofemoral syndrome,
and obesity.

Tr. 40-41.

At Step Three the ALJ concluded Plaintiff’s medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P, appendix
1.

Tr. 41-44.
The ALJ found Plaintiff has the RFC to perform medium work.

The ALJ found Plaintiff is able to lift 50 pounds occasionally
and 25 pounds frequently; to follow “short and simple
instructions”; and to perform work that is limited to “basic
routine work tasks,” that has “no close interaction with the
public and only casual and superficial interaction with coworkers,” and that is “stress low to prevent [Plaintiff] from
becoming overwhelmed.”

Tr. 44.

The ALJ defined “stress low”

work as “no fast-paced production or pace work and a workplace
with minimal changes in routine and setting.”

Tr. 44.

At Step Four the ALJ concluded Plaintiff is unable to
perform any of her past relevant work.

Tr. 50.

At Step Five, however, the ALJ found Plaintiff is capable of
performing other jobs existing in the national economy as a
“sweeper cleaner, industrial”; a “warehouse worker”; and a
“laborer, salvage.”

Tr. 51-52.

Plaintiff is not disabled.

8 - OPINION AND ORDER

Accordingly, the ALJ found

DISCUSSION
Plaintiff contends the ALJ erred when he (1) discredited
Plaintiff’s testimony; (2) improperly considered the medical,
record including Plaintiff’s Global Assessment of Functioning
(GAF) scores, the opinion of Elizabeth Perrine, QMHP, and Ruth
Ann Duncan, LMFT, and the opinion of David Truhn, Psy.D.; and
(3) discredited the lay testimony of Roy Culver, Plaintiff’s
father.
I.

Plaintiff’s Testimony
As noted, Plaintiff contends the ALJ erred when he

discredited Plaintiff’s testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).

Cotton, 799 F.2d 1403, 1407 (9th

See also Spelatz v. Astrue, 321 F. App’x 689, 692

(9th Cir. 2009).

The claimant, however, need not produce

objective medical evidence of the actual symptoms or their
severity.

Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

See also Delgado v. Commissioner of Social Sec. Admin., 500 F.
App’x 570, 570 (9th Cir. 2012).
If the claimant satisfies the above test and there is not
9 - OPINION AND ORDER

any affirmative evidence of malingering, the ALJ can reject the
claimant’s pain testimony only if she provides clear and
convincing reasons for doing so.

Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995)).

General assertions that the claimant’s

testimony is not credible are insufficient.

Id.

The ALJ must

identify “what testimony is not credible and what evidence
undermines the claimant’s complaints.”

Id. (quoting Lester, 81

F.3d at 834).
At the June 10, 2014, hearing Plaintiff testified she has
difficulty reading although she obtained her high-school diploma
with the help of special-education services.

Tr. 69-70.

Plaintiff stated she has difficulty understanding and filling out
forms and that each of her previous employers told her they were
preparing to fire her because she was too “slow.”

Tr. 91.

Plaintiff testified she suffers from anxiety and that she
suffered from depression in the past, but the depression had
improved since she regained custody of her children.

Tr. 78-79.

At the time of the hearing Plaintiff stated she was neither
taking medication nor undergoing therapy for her anxiety.
79.

Tr.

Plaintiff testified she has difficulty maintaining her house

because she struggles to concentrate long enough to complete
tasks.

Tr. 99.

Plaintiff also stated she had knee problems in the past, but
10 - OPINION AND ORDER

at the time of the hearing it was “doing a lot better.”

Tr. 83.

Plaintiff also testified since a car accident in 1999 she has
suffered low-back problems that cause her “constant pain” when
she sits and walks.

Tr. 84-85.

The ALJ discredited Plaintiff’s testimony on the basis that
(1) Plaintiff did not consistently seek treatment for her
depression and anxiety (including at the time of the hearing),
and, thus, Plaintiff’s testimony that her depression and anxiety
rendered her unable to work was not credible; (2) the treatment
record does not fully corroborate Plaintiff’s testimony;
(3) Plaintiff’s testimony was not consistent with contemporaneous
reports of her ability to function; (4) Plaintiff did not follow
through on recommended mental-health treatment, and the timing of
Plaintiff’s engagement in mental-health treatment suggests
secondary-gain motives for seeking treatment; and (5) Plaintiff
has demonstrated the ability to perform work at substantial
gainful activity levels since her alleged onset date.
The Court notes, however, that the ALJ did not entirely
discredit Plaintiff’s testimony, but instead incorporated into
his assessment of Plaintiff’s RFC many of the limitations to
which Plaintiff testified.
The ALJ correctly noted Plaintiff’s mental-health treatment
history was sufficiently sporadic that it did not support
Plaintiff’s statements about her alleged disabling anxiety.

11 - OPINION AND ORDER

Although Plaintiff sought extended mental-health treatment in
2010 and 2011 after her children were removed from her custody,
Plaintiff discontinued that treatment after her children were
returned to her custody.

Tr. 523, 612-20.

Plaintiff briefly

began treatment again in February 2013, but she discontinued
treatment in May of that year when she stated she moved out of
town.

Tr. 595-611.

Plaintiff had not re-established care

anywhere by the June 2014 hearing.

Tr. 79.

Moreover, the ALJ also correctly noted that the medical
record did not support Plaintiff’s allegations of disabling
conditions in numerous instances, including times when Plaintiff
told her treatment providers that her conditions were wellcontrolled with medication or other conservative treatment.
Tr. 470, 493, 523, 556, 597, 615.
Similarly, the ALJ reasonably concluded Plaintiff’s
testimony regarding her functionality was not consistent with
portions of the record that demonstrated she functions at a
higher level than Plaintiff indicated.

For example, although

Plaintiff reported in her disability application that she stopped
working because of her conditions, Plaintiff told Dr. Truhn and
Alison Prescott, Ph.D., that she left her last job because she
became pregnant.

Tr. 382, 461, 493-94.

Plaintiff acknowledged

at the hearing that she left her previous job due to her
pregnancy, but she also stated her past employers were preparing

12 - OPINION AND ORDER

to fire her because she was “too slow” and that she “really never
knew” why she could not work as fast as others.

Tr. 91-93.

Plaintiff, however, told Dr. Prescott that “she would return to
caregiving if she could do the physical work of the job,” but she
did not indicate she lacked the mental functionality to perform
that work.

Tr. 493.

The ALJ also correctly noted Plaintiff failed to follow up
on recommended mental-health treatment, and the ALJ reasonably
inferred the timing of Plaintiff’s pursuit of mental-health
recourse suggests she was motivated to seek treatment in order to
strengthen her applications for disability benefits rather then
for the purpose of improving her mental health.

Although

Plaintiff’s therapist referred Plaintiff to a “coping class” on
March 19, 2013, the ALJ correctly noted there is not any evidence
in the record that Plaintiff followed up on that referral.
Tr. 602.

Moreover, the ALJ pointed out that Plaintiff re-

initiated mental-health treatment on February 26, 2013, only five
days after she filed her Request for Hearing by Administrative
Law Judge following the denial of reconsideration of her
disability application.

Tr. 268-70, 605.

Thus, the ALJ

reasonably inferred from the timing of Plaintiff’s return to
mental-health treatment that such treatment was intended to
buttress her disability claim rather than to improve her mental
health.

13 - OPINION AND ORDER

Finally, the ALJ noted Plaintiff’s ability to work at a
level of substantial gainful activity during the alleged period
of disability undermines Plaintiff’s allegations that her
disabilities (which Plaintiff contends rendered her unable to
work since March 19, 1980) are not, in fact, so severe that
Plaintiff is unable to work.
On this record the Court finds the ALJ provided legally
sufficient reasons supported by substantial evidence in the
record for partially discrediting Plaintiff’s testimony.
II.

ALJ’s Consideration of the Medical Record
Plaintiff contends the ALJ erred in his consideration of the

medical record as to her mental-health conditions and, in
particular, Plaintiff’s GAF scores; the opinion of Perrine and
Duncan; and the opinion of Dr. Truhn.
A.

Plaintiff’s GAF Scores

Plaintiff contends the ALJ erred when he did not find
Plaintiff is disabled based on her mental-health issues as
reflected in her GAF scores of 51 assessed on March 31, 2010; 41
assessed on May 19, 2010; and 45 assessed on February 27, 2013.
Tr. 433, 467, 610-11.
The Ninth Circuit, however, “has recognized that ‘the
Commissioner has determined the GAF scale does not have a direct
correlation to the severity requirements in [the Social Security
Administration’s] mental disorders listings.’”
14 - OPINION AND ORDER

Doney v. Astrue,

485 F. App’x 163, 165 (9th Cir. 2012)(quoting McFarland v.
Astrue, 288 F. App’x 357, 359 (9th Cir. 2008)).

See also Cote v.

Colvin, No. 3:15-cv-00103-SI, 2015 WL 7871169, at *6 (D. Or.
Dec. 4, 2015).

The Ninth Circuit, therefore, has not required

ALJs to provide any rationale for disregarding or discrediting a
GAF score when evaluating a claimant’s mental-health limitations.
See Doney, 485 F. App’x at 165 (“We therefore hold that it was
not error for the ALJ to disregard [the claimant’s] GAF score.”).
The ALJ in this case, nonetheless, explained his reasons for
finding Plaintiff is not disabled notwithstanding her GAF scores.
When discussing GAF scores issued on March 31, 2010; May 19,
2010; and May 17, 2011, the ALJ reasoned the GAF scores were
offered during the period in which Plaintiff’s children had been
removed from her custody, and, therefore, those scores were
affected by social factors unrelated to Plaintiff’s claim for
disability.

Tr. 48-49.

More broadly, the ALJ noted GAF scores

are “highly subjective” and “intertwine psychological symptoms,
physical impairments, socioeconomic factors, and socioeconomic
factors that are not considered under the Regulations.”

Tr. 49.

The ALJ’s reasons for discounting Plaintiff’s GAF scores are
supported by substantial evidence in the record.

Three of the

four GAF scores were issued during the time that Plaintiff was
attempting to regain custody of her children, and it is clear
from the record that the stress of not having custody was the

15 - OPINION AND ORDER

primary driver of her mental-health symptoms during that period.
Moreover, the only GAF score Plaintiff identifies outside of that
period was determined at Plaintiff’s appointment five days after
filing her Request for Hearing by Administrative Law Judge.
On this record, therefore, the Court finds the ALJ did not
err when he discredited Plaintiff’s GAF scores.
B.

Opinion of Perrine and Duncan

Plaintiff next contends the ALJ erred when he discredited
the opinion of Perrine, a qualified mental-health professional,
and Duncan, a licensed marriage and family therapist.
Under the regulations in place at the time that Plaintiff
filed her disability applications and at the time when the
Commissioner rendered her final decision, the Commissioner’s
regulations separated medial opinions into two types:

those from

“acceptable medical sources” and those from “other sources.”
Molina, 674 F.3d at 1111.

See

Only “licensed physicians and certain

other qualified specialists” such as licensed or certified
psychologists, licensed podiatrists, and qualified speechlanguage pathologists are considered “acceptable medical
sources.”

Id.

In general, “[i]n order to reject the testimony

of a medically acceptable treating source, the ALJ must provide
specific, legitimate reasons based on substantial evidence in the
record.”

Id.

On the other hand, the ALJ may “discount testimony

from these ‘other sources’ if the ALJ ‘gives reasons germane to
16 - OPINION AND ORDER

each witness for doing so.’”

Id. (quoting Turner v. Soc. Sec.

Admin., 613 F.3d 1217, 1224 (9th Cir. 2010)).

The parties agree

Perrine and Duncan qualify as “other sources,” and, therefore, to
discredit their testimony the ALJ was required to provide reasons
germane to their opinion.
Perrine and Duncan conducted a “Mental Health/Psychological
Assessment” of Plaintiff on March 31, 2010, after Plaintiff’s
children were removed from her custody.

Perrine and Duncan found

Plaintiff to be “somewhat developmentally delayed,” and she
“lack[ed] insight and understanding regarding the situation and
may have some poor judgment.”

Tr. 434.

Perrine and Duncan found

Plaintiff’s “symptoms meet the criteria for Adjustment Disorder
and Learning Disorder, NOS” and found Plaintiff’s prognosis to be
“moderate to poor for responding affirmatively to treatment.”
Tr. 434.

Perrine and Duncan concluded “[w]ithout treatment

[Plaintiff] is at risk for deterioration in functioning, which
would negatively impact her family, social and occupational
life.”

Tr. 434.

The ALJ discredited the opinion of Perrine and Duncan
because the opinion was not consistent with evidence in the
record, including Plaintiff’s statements that she functions
adequately even during periods in which she does not have mentalhealth treatment and because the opinion was offered for the
purpose of a parenting evaluation and did not address the issue

17 - OPINION AND ORDER

whether Plaintiff is disabled.

The ALJ is correct that the

opinion of Perrine and Duncan was focused on Plaintiff’s ability
to care for her children and did not expressly address whether
Plaintiff was capable of employment.

Although some portions of

the assessment and findings may be relevant to the disability
determination, much of the assessment is not relevant to the
issues that were under consideration by the ALJ.
Moreover, the ALJ reasonably found the opinion or Perrine
and Duncan to be inconsistent with other parts of the medical
record.

Although Perrine and Duncan opined Plaintiff would be at

risk of “deterioration in functioning” without mental-health
treatment, the record reflects Plaintiff went without treatment
for extended periods without a marked loss in everyday function.
See Tr. 523 (Plaintiff reported to her primary-care provider that
she “did not think she had depression” and “feels fine off the
medication.”).
On this record, therefore, the Court concludes the ALJ did
not err when she discredited the opinion of Perrine and Duncan
because the ALJ provided legally sufficient reasons supported by
substantial evidence in the record for doing so.
C.

Dr. Truhn’s Opinion

As noted, Plaintiff contends the ALJ erred when he
discredited the opinion of Dr. Truhn, an examining psychologist
who conducted a “Comprehensive Psychological Evaluation” of

18 - OPINION AND ORDER

Plaintiff on May 19, 2010.

Tr. 458-69.

An ALJ may reject an examining or treating physician’s
opinion when it is inconsistent with the opinions of other
treating or examining physicians if the ALJ makes findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record.

Taylor v. Comm'r of

Soc. Sec., 659 F.3d 1228, 1232 (9th Cir. 2011).

When the medical

opinion of an examining or treating physician is uncontroverted,
however, the ALJ must give “clear and convincing reasons” for
rejecting it.

Turner v. Comm'r of Soc. Sec., 613 F.3d 821, 830-

31 (9th Cir. 2010)(quoting Lester v. Chater, 81 F.3d 821, 830-31
(9th Cir. 1995)).

The opinion of a treating physician is “given

greater weight than the opinions of other physicians.”

Kelly v.

Astrue, 471 F. App’x 674, 676 (9th Cir. 2012)(quoting Smolen v.
Chater, 80 F.3d 1273, 1285 (9th Cir. 1996)).
A nonexamining physician is one who neither examines nor
treats the claimant.

Lester, 81 F.3d at 830.

v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).

See also Garrison
“The opinion of a

nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician.”
at 1233 (quoting Lester, 81 F.3d at 831).

Taylor, 659 F.3d

When a nonexamining

physician’s opinion contradicts an examining physician’s opinion
and the ALJ gives greater weight to the nonexamining physician’s
19 - OPINION AND ORDER

opinion, the ALJ must articulate her reasons for doing so with
specific and legitimate reasons supported by substantial
evidence.

See, e.g., Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,

1198 (9th Cir. 2008).
Dr. Truhn found Plaintiff exhibited symptoms of posttraumatic stress disorder (PTSD) as a result of abuse as a child
and as an adult and that Plaintiff described symptoms of
depression that had “been occurring for at least four and a half
years” and were “exacerbated” by the loss of custody of her
children.

Tr. 467.

Dr. Truhn also found Plaintiff’s “scores on

the neuropsychological screening test are indicative of a
cognitive disorder” and Plaintiff’s “scores on the intellectual
testing fell in the borderline range” with specific deficits in
abstract thinking, knowledge and use of vocabulary words, and
knowledge of common-sense reasoning and ability to solve day-today problems.

Tr. 467.

Dr. Truhn noted, however, that “[i]f the

depression, anxiety, and symptoms of [PTSD] are treated and
become less severe, that can affect her intellectual and
cognitive functioning.”

Tr. 468.

The ALJ gave “some weight” to Dr. Truhn’s opinion because it
was “consistent with the evidence of record” and “his opinions
adequately consider [Plaintiff’s] subjective mental health
complaints.”

Tr. 49.

The ALJ, however, partially discredited

Dr. Truhn’s opinion on the basis that “Dr. Truhn did not evaluate

20 - OPINION AND ORDER

[Plaintiff] for disability purposes, rather for suitability as a
parent.”

Tr. 49.

The ALJ is correct that Dr. Truhn’s opinion addressed
Plaintiff’s ability to provide for her children as a parent and
did not extensively discuss Plaintiff’s ability to work.

For

example, Dr. Truhn’s recommendations and conclusions were
specifically framed as answers to questions that related to
Plaintiff’s ability to serve as a parent.

Tr. 467-69.

The ALJ

is also correct that many of the broader conclusions that
Dr. Truhn reached were accounted for in the ALJ’s assessment of
Plaintiff’s RFC, including in the ALJ’s limitation of Plaintiff
to “following short and simple instructions,” performing work
that is limited to “basic routine tasks,” not having “close
interaction with the public” and only being required to have
“casual and superficial interaction with co-workers,” and being
limited to “stress low” work to “prevent [Plaintiff] from
becoming overwhelmed.”

Tr. 44.

Thus, to the extent that

Dr. Truhn’s conclusions applied to the ALJ’s disability
determination, the ALJ sufficiently accounted for Dr. Truhn’s
assessment in the ALJ’s evaluation of Plaintiff’s RFC.
On this record, therefore, the Court concludes the ALJ did
not err when he partially discredited Dr. Truhn’s opinion because
the ALJ provided legally sufficient reasons supported by
substantial evidence for doing so.

21 - OPINION AND ORDER

III. Lay Testimony
Plaintiff contends the ALJ erred when he discredited the lay
testimony of Plaintiff’s father, Roy R. Culver.
When determining whether a claimant is disabled the ALJ must
consider lay-witness testimony concerning a claimant’s
limitations and ability to work.
1104, 1114 (9th Cir. 2012).

Molina v. Astrue, 674 F.3d

If the ALJ wishes to discount the

testimony of lay witnesses, he “must give reasons that are
germane to each witness.” Id. (quoting Nguyen v. Chater, 100 F.3d
1462, 1467 (9th Cir. 1996)).

See also Lester v. Chater, 81 F.3d

821, 834 (9th Cir. 1995)(improperly rejected lay-witness
testimony is credited as a matter of law).
Although the ALJ’s reasons for rejecting lay-witness
testimony must be “specific,” Stout v. Comm’r, Social Sec.,
Admin., 454 F.3d 1050, 1054 (9th Cir. 2006), the ALJ need not
discuss every witness’s testimony on an individualized basis.
Molina, 674 F.3d at 1114.

“[I]f the ALJ gives germane reasons

for rejecting testimony by one witness, the ALJ need only point
to those reasons when rejecting similar testimony by a different
witness.”

Id.

See also Valentine v. Comm’r Soc. Sec. Admin.,

674 F.3d 685, 690 (9th Cir. 2009).
Roy Culver submitted a Third Party Adult Function Report
dated March 26, 2012, in which he stated Plaintiff “does not
understand simple things and she is very slow about doing
22 - OPINION AND ORDER

things.”

Tr. 391.

Roy Culver stated Plaintiff does not spend

time with others, is “alone all the time,” and does not go
anywhere on a regular basis.

Tr. 395.

Roy Culver reported

Plaintiff’s conditions affect her abilities to lift, bend, stand,
squat, walk, talk, climb stairs, remember, complete tasks,
understand, and follow instructions.

Tr. 396.

Roy Culver stated

Plaintiff’s back pain limits her physically, and she can only
walk four or five blocks before requiring rest.

Tr. 396.

Roy

Culver reported Plaintiff does not follow written instructions
well because she “[cannot] read very well,” does not follow
spoken instructions well because “she will start something and
then she stops,” and does not handle stress or changes in routine
well.

Tr. 396-97.

Roy Culver also stated Plaintiff has had

these limitations “all her life.”

Tr. 395.

The ALJ discredited Roy Culver’s testimony on the basis that
it was inconsistent both internally and with Plaintiff’s report
of functioning.

Tr. 50.

The ALJ reasonably found Roy Culver’s

report to be particularly inconsistent with respect to
Plaintiff’s social functioning.

Although Roy Culver stated

Plaintiff does not spend time with others and “stays alone all
the time,” he also stated Plaintiff does not have a problem
getting along with family, friends, and neighbors and, in fact,
needs somebody to accompany her when she goes out.

Tr. 395.

In

addition, the ALJ found Roy Culver’s testimony was contradicted

23 - OPINION AND ORDER

by Plaintiff’s reports.

As the ALJ noted, Roy Culver stated

Plaintiff does not go anywhere on a regular basis, but Plaintiff
reported to Dr. Prescott that she “drives to run errands about
twice a week,” including trips to the grocery store and to
appointments.

Tr. 395, 494.

Accordingly, on this record the Court concludes the ALJ did
not err when he discredited the testimony of Roy Culver because
the ALJ provided legally sufficient reasons supported by
substantial evidence for doing so.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 15th day of May, 2017.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

24 - OPINION AND ORDER