Imel v. Commissioner of Social Security
Opinion and Order. Signed on 7/31/2017 by Judge Malcolm F. Marsh. (ma2)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOHANNA WAYNE IMEL,
COMMISSIONER SOCIAL SECURITY
JOHN E. HAAPALA, JR.
401 E. 10th Ave., Suite 240
Eugene, OR 97401
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
District of Oregon
JANICE E. HEBERT
Assistant United States Attorney
1000 S. W. Third Ave., Suite 600
P01iland, OR 97204-2902
SARAH L. MARTIN
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900 M/S221A
Seattle, WA 98104-707 5
Attorneys for Defendant
1 - OPINION AND ORDER
Case No. 6: 16-cv-00560-MA
OPINION AND ORDER
Plaintiff Johanna Wayne Imel seeks judicial review of the final decision ofthe Commissioner
of Social Security denying her application for a period of disability and disability insurance benefits
("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403. This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the Cominissioner's decision is
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffprotectively filed her application for a period of disability and DIB benefits on April
9, 2012, alleging disability beginning March 15, 2008, due to Crohn's disease and colitis, cervical
and lumbar spondylosis, right rotator cuff tear, and depression. Tr. Soc. Sec. Admin. R. ("Tr.") at
158. ECF No. 10. Plaintiffs claims were denied initially and upon reconsideration. Plaintiff filed
a request for a hearing before an administrative law judge ("ALJ"). The ALJ held a hearing on
August 14, 2014, at which Plaintiff appeared with her attorney and testified. A vocational expe1i,
Frank Lucas, also appeared at the hearing and testified. On August 29, 2014, the ALJ issued an
unfavorable decision. The Appeals Council denied Plaintiffs request for review, and therefore, the
ALJ's decision became the final decision of the Commissioner for purposes ofreview.
Plaintiff was born in 1959, and was 48 years old on the alleged onset of disability date and
54 on her date last insured. Plaintiff did not complete high school, but has received her GED. Tr.
40, 159. Plaintiff has past relevant work as a sales clerk, convenience store clerk, cashier, babysitter,
and woodwork shop hand. Tr. 27, 40-43.
2 - OPINION AND ORDER
THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for dete1mining whether
a person is disabled. Bowenv. Yuckert,482V.S.137, 140(1987);20C.F.R. §404.1520. Each step
is potentially dispositive. The claimant bears the burden of proof at steps one through four. See
Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel,
180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show
that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d
1153, 1161 (9th Cir. 2012).
The ALJ found that Plaintiff meets the insured status requirements through December 31,
2013. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since
her alleged onset of disability through her date last insured. At step two, the ALJ found that Plaintiff
had the following severe impairments: spinal stenosis and degenerative disc disease of the cervical
and lumbar spine; cervical radiculitis; sciatica; lumbago; right rotator cuff tear; fibromyalgia; and
At step three, the ALJ found that Plaintiffs impairments, or combination of
impahments, did not meet or medically equal a listed impairment.
The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perfo1m light work
with additional limitations:
lifting and/or canying no more than 20 pounds occasionally and I 0 pounds
frequently; standing and/or walking about six hours of an eight-hour workday, and
sitting about six hours of an eight-hour workday, and sitting about six hours of an
eight-hour workday, with normal breaks. She must never climb ladders, ropes, and
scaffolds. [Plaintiff!, a right hand dominant individual, is limited to no overhead
reaching with the right upper extremity. She is limited to no more than frequent
handling and fingering with the right upper extremity. [Plaintiff! must avoid even
moderate exposure to operational control of moving machinery, hazardous
3 - OPINION AND ORDER
machine1y, and unprotected heights. She can understand and cany out simple
At step four, the ALJ found that Plaintiff is unable to perfo1m her past relevant work. At
step five, the ALJ found that considering Plaintiffs age, education, work experience, and residual
functional capacity, jobs exist in significant numbers in the national economy that Plaintiff can
perfo1m, including such representative occupations as: counter clerk, survey worker, marking clerk,
or bakery helper. Accordingly, the ALJ concluded that Plaintiffhas not been under a disability under
the Social Security Act from March 15, 2008 through December 31, 2013.
ISSUES ON REVIEW
On appeal to this court, Plaintiff contends the following errors were committed: (1) the ALJ
improperly evaluated her testimony; (2) the ALJ failed to develop the record; and (3) the ALJ erred
in evaluating the lay testimony of her partner, Robe1t Compher. The Commissioner argues that the
ALJ' s decision is suppo1ted by substantial evidence and is free of legal eiTor. Alternatively, the
Commissioner contends that even if the ALJ erred, Plaintiff has not demonstrated harmful error.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Berry v. As/rue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is
more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Hill, 698 F.3d at 1159 (internal quotations
omitted); Valentine, 574 F.3d at 690. The comt must weigh all the evidence, whether it suppo1ts or
4 - OPINION AND ORDER
detracts from the Commissioner's decision. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014);
JV/artinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be
upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v.
Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the
Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its
judgment for that of the Commissioner." Edlund v. Nfassanari, 253 F .3d 1152, 1156 (9th Cir. 2001 );
Garrison, 759 F.3d at 1010.
The ALJ Did Not Err in Discounting Plaintiffs Credibility
To dete1mine whether a claimant's testimony regarding subjective pain or symptoms is
credible, an ALJ must perform two stages of analysis. 20 C.F.R. § 404.1529. The first stage is a
threshold test in which the claimant must produce objective medical evidence of an underlying
impairment that could reasonably be expected to produce the symptoms alleged. lVfolina v. Astrue,
674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
At the second stage of the credibility analysis, absent affomative evidence of malingering, the ALJ
must provide clear and convincing reasons for discrediting the claimant's testimony regarding the
severity of the symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th
Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
The ALJ must make findings that are sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763
F.3d 1154, 1163 (9th Cir. 2014); Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015).
Factors the ALJ may consider when making such credibility determinations include the objective
5 - OPINION AND ORDER
medical evidence, the claimant's treatment history, the claimant's daily activities, and
inconsistencies in testimony. 1 Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039.
In a June 22, 2012 Adult Function Report, Plaintiff stated that she suffers chronic pain in her
neck and back, and that she is unable to lift more than 10 pounds. Tr. 184. Plaintiff stated that her
chronic pain wakes her in the night, and that she sleeps with a heating pad. Tr. 185. Plaintiff stated
that she has difficulty washing her hair because she cannot lift her aims, and that she cannot shave
her legs. Tr. 186. Plaintiff cooks four to five times each week, can do dishes, dust, and straighten
up, but does not do yard work. Tr. 186-87. Plaintiff described that she enjoys working on the
computer, sewing, and writing poems. Tr. 188. Plaintiff estimated she can lift three to five pounds,
but cannot sit for extended periods or climb stairs. Tr. 189. Plaintiff indicated that her chronic pain
interferes with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, completing
tasks, and climbing stairs. Tr. 189. Plaintiff stated she has no trouble following instructions and gets
along fine with authority figures. Tr. 189.
In an undated Pain & Fatigue Questionnaire, Plaintiff described chronic pain, and a feeling
of pins and needles in her neck, lower back, right leg and arm. Tr. 169. Plaintiff stated that the pain
lasts all day, and that she loses feeling in her right leg, causing falls. Tr. 169. Plaintiff stated lifting,
bending, and climbing make the pain worse, and that lying down, heat, and pain medication make
The Court observes that on March 28, 2016, Social Security Ruling ("SSR") 16-3p
became effective, and it eliminated the use of the te1m "credibility." The ALJ's decision in this
case was issued August 24, 2014. I have previously determined that SSR 16-3p does not apply
retroactively because 42 U.S.C. § 405(g) does not contain any express authorization from
Congress allowing the Commissioner to engage in retroactive rulemaking. Smith v. Colvin, No.
6:15-cv-01625-MA, 2017 WL 388814, at *4 n.2 (D. Or. Jan. 27, 2017). See, e.g., Wright v.
Colvin, No. 15-cv-02495-BLF, 2017 WL 697542, *9 (N.D. Cal. Feb. 22, 2017) (holding SSR 163p does not apply retroactively); Thayer v. Colvin, No. 2:16-cv-00545-DWC, 2017 WL 132450,
at *7 (W.D. Wash. Jan. 13, 2017) (same). I adhere to that rationale here.
6 - OPINION AND ORDER
the pain better. Tr. 169. Plaintiff also estimated that she can be active for an hour or two before
needing to rest, and that she rest or naps three times a day. Tr. 169.
In the decision, the ALJ cited several specific reasons for discounting Plaintiffs credibility.
First, the ALJ found that Plaintiff misrepresented recommendations from specialists to her treating
providers. An ALJ may consider a claimant's prior inconsistent statements and other testimony by
the claimant that appears less than candid when assessing credibility. Ghanim, 763 F.3d at 1163;
see Haight v. Comm 'r Soc. Sec. Admin., Case No. 6:15-cv-02149-YY, 2017 WL 1371274, *5 (D.
Or. Apr. 14, 2017) (ALJ cited clear and convincing evidence where claimant misrepresented her
functional abilities where she received unemployment benefits and also sought disability benefits);
Lemke v. Astrue, No. CV-07-1363-HU, 2009 WL 395147, *21-22 (D. Or. Feb. 3, 2009), ajf'd, 380
F. App'x 599 (9th Cir. 2010) (upholding adverse credibility determination where claimant
misrepresented physician's recommendation). The ALJ found that the two instances of
"misrepresenting what a specialist recommended for treatment reflects negatively on [Plaintiffs]
credibility." The ALJ detailed the two instances at length.
As the ALJ discussed, a March 9, 2011, treatment note from Plaintiffs primary care provider,
J. Countiss, M.D., indicated that Plaintiff saw consulting neurologist David Walker, M.D., on
September 28, 2010 for ongoing neck and shoulder pain. Tr. 429. Dr. Countiss's treatment note
reflects that Dr. Walker stated that Plaintiff could have surge1y on her neck, but she needed to stop
smoking first, and that Plaintiff has been unable to quit smoking. Tr. 429. Dr. Walker's treatment
note reflects that on examination, Plaintiff exhibited a diminished ranged of motion in her neck and
that her pain was out of prop01tion to palpation over the musculature of her neck and trapezius. Tr.
308. Dr. Walker indicated that Plaintiff had chronic neck pain, with severe right C3-4 foraminal
7 - OPINION AND ORDER
stenosis and moderate bilateral foraminal stenosis at C5-6. Tr. 308. Additionally, Dr. Walker's
treatment notes observe that Plaintiff had not yet tried physical therapy or nerve root injections. Tr.
306. Dr. Walker's treatment note does not contain a specific treatment recommendation, but Dr.
Walker sent Plaintiff for additional cervical flexion and extension films for diagnostic purposes. Tr.
309. That imaging demonstrated moderate degenerative disc disease at C5-6 and C6-7, and dynamic
views demonstrated "no evidence for segmental instability at any level." Tr. 314. Moreover, as the
ALJ discussed, after Dr. Walker's September 2010 consultation and before Dr. Countiss's March
2011 treatment note, Plaintiff underwent a course of physical therapy that ended when the physical
therapist felt Plaintiff had attained maximum therapeutic benefit and expressed concern about the
degree of Plaintiffs complaint. Tr. 25, Tr. 421. These findings are wholly supported by substantial
evidence in the record. Thus, based on the course of events and lack of cervical instability, the ALJ
reasonably could conclude that Dr. Walker did not recommend surge1y, but instead recommended
Plaintiff argues that the ALJ erroneously presumed that she misinfo1med Dr. Countiss that
Dr. Walker recommended surge1y because neither Dr. Countiss's nor Dr. Walker's treatment notes
explicitly state that Dr. Walker made such a recommendation. Pl. 's Br. at 16. Although Plaintiff
is conect that the treatment notes themselves do not specifically identify Plaintiff as the source of
the information from Dr. Walker, based on the information available in the record, the ALJ
reasonably could infer that Plaintiff misrepresented the specialist's recommendation and reasonably
discounted Plaintiffs credibility on this basis. Even if the record could be viewed as Plaintiff
suggests, the ALJ's interpretation is rational, and will not be disturbed. i\1olina, 674 F.3d at 1111.
8 - OPINION AND ORDER
Additionally, the ALJ detailed that in April 2012, Bruce Peny, M.D., wrote that he did not
feel "operative intervention" would yield measurable results, and "I inform her that I will strongly
recommend an evaluation in a pain clinic." Tr. 26, 254. Inconsistently, Plaintiff info1med her thenprimary care provider Linda Picker-Johnson, N.P., in May 2012 that Dr. Perry recommended she see
a neurosurgeon. Tr. 26, 258. The ALJ found that the Plaintiffs repo1t to Nurse Practitioner PickerJohnson was inconsistent with Dr. Perry's recommendation, and discredited her on this basis. The
ALJ's findings are wholly supp01ted by substantial evidence.
Nevertheless, Plaintiff challenges the ALJ's finding of misrepresentation. Plaintiff argues
that Plaintiffs report to Nurse Practitioner Picker-Johnson was not inconsistent because Dr. Perry
sent her to a neurologist for an electrodiagnostic evaluation of her right neck, shoulder, and upper
extremity complaints. Tr. 239. Plaintiffs argument is without merit. The electrodiagnostic
evaluation was performed by Peter A. Grant, M.D., on March 13, 2012, and revealed no
neurophysiologic abnormalities, emphasizing that "all testing was fully n01mal with regards to any
radicular process." Tr. 241. Indeed, Dr. Grant indicated that Plaintiffs right neck, shoulder, and
upper extremity pain was being caused by chronic myofascial pain syndrome. Tr. 241. Moreover,
Dr. Peny' s April 2012 treatment notes indicate that he reviewed Dr. Grant's testing results prior to
making his own recommendation to Plaintiff that she follow up with a pain clinic, and that surgical
intervention was unwarranted. Tr. 241. Moreover, Nurse Picker-Johnson's May 2012 notes reflect
that Plaintiff had seen Dr. Perry, that Picker-Johnson did not yet have Dr. Peny's notes, and that
Plaintiff stated Dr. Peny recommended Neurosurge1y. Tr. 258. Indeed, the record reflects that after
Picker-Johnson obtained Dr. Peny's notes, Plaintiff began treatment with a pain clinic in August
2013, not Neurosurgery as Plaintiff had rep01ted. Tr. 377. In summa1y, the ALJ's finding that
9 - OPINION AND ORDER
Plaintiff misrepresented specialists' recommendations is wholly supported by substantial evidence,
and provides a specific, clear and convincing reason to discount Plaintiffs credibility.
Second, the ALJ found that Plaintiffs alleged limitations from her impai1ments are not fully
supported by the objective medical record. While a claimant's statements regarding the severity of
her symptoms may not be disregarded solely because they are not substantiated by objective medical
evidence, the ALJ may consider a lack of medical evidence in determining credibility. Bray v.
Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). Here, the ALJ discussed that
Plaintiffs upper right extremity weakness was not fully suppo1ied. The ALJ indicated that despite
a reduced range of motion, her weakness was not due to neurologic compromise. Tr. 25, 240-41,
243, 436. Records cited by the ALJ revealed that Plaintiff had giveaway weakness and that she did
not always have diminished strength on examination. Tr. 25, 250-51, 253, 349, 379. The ALJ noted
found that electrodiagnostic studies confirmed the absence of radiculopathy, which the ALJ found
consistent with Plaintiffs stable cervical abnormalities. Tr. 25, 232, 241, 310, 426. Moreover, the
ALJ noted that in 2013, Plaintiff reported that she received good pain control with an epidural
injection. Tr. 26, 365. The ALJ's findings are wholly supp01ied by substantial evidence.
Concerning Plaintiffs lumbar spine impahment, the ALJ discussed that Plaintiff first
repo1ied lumbar pain after an accident in 2010, and that Plaintiff was then diagnosed with a lumbar
strain. Tr. 26, 224-25. The ALJ indicated that Plaintiff did not specifically seek treatment for her
alleged back pain until 2012, nearly two years later. Tr. 26, 299. An unexplained gap in treatment
can be a clear and convincing reason for discounting a claimant's credibility. lvfolina, 674 F.3d at
1113 (ALJ may discount claimant's credibility for an unexplained or inadequately explained failure
to seek treatment). As the ALJ discussed, in 2012 Plaintiff repo1ied back pain over the previous five
10- OPINION AND ORDER
to six months, radiating down right leg, causing falls. Tr. 299. The ALJ noted that during the
examination, Plaintiff had an antalgic gait limping on the right, but inconsistently could heel and toe
walk and had normal strength in her lower extremities bilaterally. Tr. 26, 302. The ALJ accurately
noted that an MRI of her lumbar spine was essentially normal, as indicated by her treating provider
Nurse Picker-Johnson. Tr. 26, 312, 347. And, as the ALJ conectly found, although Plaintiff
repo1ied sometimes needing a cane or crutches, there is no indication that this was medically
necessaiy. Tr. 26. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (ALJ properly
discredited claimant where no objective medical evidence demonstrated need for cane or
wheelchair). Furthermore, the ALJ detailed that on numerous occasions Plaintiff had a normal
neurologic examination and normal gait. Tr. 375, 379, 473, 465, 468. The ALJ's findings are
wholly supported by substantial evidence, and therefore, the ALJ could reasonably discount
Plaintiffs credibility on this basis. Thus, the lack of objective medical evidence to supp01i the
severity of complaints lends additional clear and convincing support to the ALJ's adverse crediblity
In sho1i, the ALJ thoroughly discussed the medical record and provided specific details about
inconsistencies in Plaintiffs reports to her treating providers. The ALJ has provided specific, clear
and convincing reasons to suppo1i the adverse credibility determination that are based on reasonable
inferences drawn from the record as whole. }Jolina, 674 F.3d at 1111. The ALJ's findings are
sufficiently specific to permit the court to conclude that Plaintiffs credibility was not arbitrarily
discredited. Brown-Hunter, 806 F.3d at 493. The ALJ did not err.
11 - OPINION AND ORDER
The ALJ Was Not Required to Develop the Record Further
An ALJ has a duty to conduct a full and fair hearing. McLeod v. Astrue, 640 F.3d 881, 885
(9th Cir. 2011 ). As pmt of this duty, an ALJ must fully and fairly develop the record to ensure that
.the claimant's interests are considered, even when the claimant is represented by counsel.
Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). Fulfilling the duty to develop the record
may compel the ALJ to consult a medical expett or to order a consultative examination. Id; see 20
C.F.R. § 404.1519a. The ALJ's duty to develop the record is "triggered only when there is
ambiguous evidence or when the record is inadequate to allow for proper evaluation of the
evidence." lvlayes v. }vfassanari, 276 F.3d 453, 459-60 (9th Cir. 2001).
Plaintiff contends the ALJ etTed in failing to re-contact Plaintiffs treating physicians for an
opinion, ordering a consultative examination, or having a medical expert testify at the hearing.
According to Plaintiff, the ALJ ened by relying on nonexamining agency physician Mmtin Kehrli,
M.D., in formulating Plaintiffs RFC. The comt disagrees.
Plaintiffs argument does not accurately reflect the requirements of 20 C.F.R. § 404.1519a.
This regulation requires that before ordering a consultative examination, the ALJ must consider a
number of factors, including the existing medical evidence, interview forms, and a claimant's
The ALJ has broad discretion in ordering a consultative examination. Reed v.
}vfassanari, 270 F.3d 838, 842 (9th Cir. 2001). Moreover, the ALJ is required to seek additional
infonnation or clarification from a treating source where the evidence is inconsistent or insufficient.
See 20 C.F.R. § 404.1520b(c)(l) (2012) (considering evidence, recontacting treating somces).
Here, Plaintiff fails to identify any ambiguity, conflict, or insufficiency in any medical record
that required clarification from her treating providers, nor did the ALJ make such a finding. Thus,
12 - OPINION AND ORDER
the ALJ's duty to develop the record was not triggered. See Thomas, 278 F.3d at 958 (duty not
triggered where the ALJ did not make a finding that the medical rep01i was inadequate to make a
Plaintiffs further contends that the ALJ erred in relying on Dr. Kehrli' s opinion, arguing that
Dr. Kehrli did not explain what medical records suppo1ied his finding that Plaintiff could sit, stand
or walk for six hours in an eight hour workday, and that Dr. KehrIi failed to consider all of Plaintiffs
medical impairments. Plaintiff asserts that the ALJ erred by relying on Dr. Kehrli' s opinion instead
of developing the record. Pl.'s Br. at 18-19, ECF No. 14. Plaintiffs argument misses the mark.
Agency physicians are expe1is in social security disability evaluations, and therefore the ALJ
was required to consider Dr. Kehrli's opinion.
20 C.F.R. § 404.1527(e). Additionally, a
nonexamining physician's opinion may serve as substantial evidence when it is not contradicted by
other evidence. Plaintiff has not demonstrated that Dr. Kehrli's opinion was contradicted by other
evidence. In this regard, Plaintiff appears to suggest that Dr. Kehrli's April 8, 2013 opinion is not
supported by substantial evidence because it was rendered before her examination by Brett Quave,
M.D., who diagnosed Plaintiff with fibromyalgia in October 2013. However, Plaintiff does not
identify any functional limitations assessed by Dr. Quave due to her fibromyalgia that the ALJ failed
to consider. To be sure, the ALJ found Plaintiffs fibromyalgia a severe impairment at step two, and
thoroughly discussed Dr. Quave' s records when assessing Plaintiffs RFC. Tr. 21, 26, 363. The ALJ
is charged with resolving conflicts in the medical record, and must consider all of the limitations
imposed by Plaintiffs impairments when fashioning the RFC. Carmickle, 533 F.3d at 1164-65.
Tellingly, Plaintiff does not assign eITor to the ALJ' s interpretation of the medical record, including
·Dr. Quave's opinion. Therefore, because Plaintiff has not identified conflicting opinions, the ALJ
13 - OPINION AND ORDER
could rely upon Dr. Kehrli's opinion. Moreover, Plaintiff fails to identify any an ambiguity or
inadequacy in the record that required further clarification, and the ALJ was not required to solicit
additional testimony from Plaintiffs treating providers. Thomas, 278 F.3d at 958. There was ample
medical evidence in record to permit the ALJ to make a detennination that Plaintiff was not disabled.
The ALJ Did Not Err in Evaluating the Lay Testimony
Lay witness testimony as to a claimant's symptoms or how an impairment affects his ability
to work is competent evidence, which the ALJ must take into account. lvlolina, 674 F.3d at 1114;
Nguyen v. Chafer, 100 F.3d 1462, 1467 (9th Cir. 1996). The ALJ need not discuss every witness's
testimony, and "ifthe 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." 1'1iolina,
674 F.3d at 1114. Inconsistency with other evidence in the record is a germane reason for rejecting
the testimony of a lay witness. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). It is not reversible
error to reject lay testimony when "the lay testimony described the same limitations as [claimant's]
own testimony, and the ALJ's reasons for rejecting [claimant's] testimony apply with equal force
to the lay testimony." 1'1iolina, 674 F.3d at 1122.
Plaintiff argues that the ALJ eITed in rejecting the testimony of her partner, Robert Compher.
In a June 23, 2012 Function Report - Adult - Third Party, Mr. Compher noted that he sees Plaintiff
after work and on weekends. Tr. 192. Mr. Compher stated that Plaintiff is unable to lift, walk, or
stand without pain, and that driving is difficult. Tr. 192. Mr. Compher noted that Plaintiff has
difficulty sleeping, needs no help with personal care, and that making meals takes longer. Tr. 19394. Mr. Compher indicated that Plaintiff is able to do the dishes and light housework, but that he
does the laundry and vacuums because Plaintiff cannot. Tr. 194. Mr. Compher indicated that
14- OPINION AND ORDER
Plaintiff is capable of shopping in stores, and does so a couple times each month, but she does not
load or unload the groceries, and that Plaintiff is able to drive a car. Tr. 197.
In the decision, the ALJ accurately summarized Mr. Compher' s testimony and provided two
reasons for discounting it. First, the ALJ noted Mr. Compher's testimony was generally consistent
with Plaintiffs allegations, which the ALJ rejected. Here, Mr. Compher indicated that Plaintiff
cannot work because she cannot lift, stand or walk without pain, akin to allegations asserted by
Plaintiff. As discussed at length above, the ALJ appropriately discounted Plaintiffs similar
complaints. Therefore, the ALJ has provided a germane reason for rejecting Mr. Compher's
comparable testimony. ivfolina, 674 F.3d at 1114; Valentine, 574 F.3d at 694.
Second, the ALJ rejected Mr. Compher's testimony because it is not fully supported by the
objective medical evidence. Inconsistency with the medical record can be a germane reason for
discounting lay testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (holding
inconsistency with medical evidence is a germane reason for discounting lay testimony). But, an
ALJ may not discredit lay testimony because it is not c01Toborated by medical evidence. As the ALJ
accurately found, contrary to allegations that Plaintiff cannot walk without pain, the ALJ detailed
numerous examinations where Plaintiff displayed ano1mal neurologic examination and had a nonnal
gait. Additionally, Plaintiff does not identify any limitations described by Mr. Compher that extend
beyond those described by Plaintiff. The ALJ's reasoning is backed by substantial evidence in the
record as a whole, and provides another ge1mane reasons for discounting l'vfr. Compher's testimony.
2vfolina, 674 F.3d at 1114, 1122. Accordingly, the ALJ did not err.
15- OPINION AND ORDER
For the reasons set fo1ih above, the Commissioner's final decision is AFFIRMED. This
action is DISMISSED.
IT IS SO ORDERED.
day of JULY, 2017.
Malcolm F. Marsh
United States District Judge
16- OPINION AND ORDER
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