Hilliker v. Commissioner Social Security Administration
Opinion & Order. Signed on 09/21/2017 by Judge Marco A. Hernandez. (rs)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KATHY E. HILLIKER,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Harder, Wells, Baron & Manning, P.C.
474 Willamette, Suite 200
Eugene, OR 97401
Attorneys for Plaintiff
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OPINION & ORDER
Billy J. Williams
Janice E. Hebert
U.S. Attorney’s Office
District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97204
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant
HERNÁNDEZ, District Judge:
Plaintiff Kathy Hilliker brings this action for judicial review of the Commissioner’s final
decision denying her application for Supplemental Security Income (“SSI”) under Title XVI of
the Social Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42
U.S.C. § 1382(c)(3)). Because the Commissioner’s decision is free of legal error and supported
by substantial evidence in the record, it is affirmed.
Plaintiff was born on August 30, 1960, and was fifty-two years old on her amended
alleged disability onset date. Tr. 30.1 Plaintiff has a ninth grade education and past relevant work
experience as a sandwich maker. Tr. 29–30, 231. On October 25, 2012, Plaintiff filed her
application for disability insurance benefits (“DIB”) and SSI. Tr. 20. Plaintiff’s original alleged
disability onset date was August 10, 2009. Id. Her claims were initially denied on February 14,
2013, and again upon reconsideration on June 26, 2013. Id. Plaintiff then requested a hearing on
July 19, 2013. Id. On June 17, 2014, a hearing was held before Administrative Law Judge
(“ALJ”) Robert Frank Spaulding. Tr. 38. At that hearing, Plaintiff moved to voluntarily dismiss
Citations to “Tr.” refer to pages of the administrative record transcript, filed here as ECF 12.
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her DIB claim and to amend her alleged disability onset date to October 25, 2012. Tr. 40–41.
ALJ Spaulding granted her motion. Id. On October 9, 2014, the ALJ issued a written opinion
denying Plaintiff’s SSI application. Tr. 31. The Appeals Council denied Plaintiff’s request for
review, making the ALJ’s opinion the Commissioner’s final decision that Plaintiff now
challenges in this Court. Tr. 1–9.
SEQUENTIAL DISABILITY ANALYSIS
A claimant is disabled if she is unable to “engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. Valentine v.
Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate
burden of proving disability. Id.
At the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,
140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines
whether the claimant has a “medically severe impairment or combination of impairments.”
Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not
At step three, the Commissioner determines whether claimant’s impairments, singly or in
combination, meet or equal “one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;
20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
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At step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (“RFC”) to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the
claimant cannot perform past relevant work, the burden shifts to the Commissioner. At step five,
the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at
141–42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets its burden
and proves that the claimant is able to perform other work which exists in the national economy,
the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
At step one, the Commissioner found that Plaintiff had not engaged in substantial gainful
activity since her amended alleged disability onset date. Tr. 22
At step two, the Commissioner found that Plaintiff had the following severe impairments:
osteoarthritis; somatic dysfunction; degenerative disk disease of the cervical spine;
pseudoseizures; major depressive disorder; and panic disorder. Id.
At step three, the Commissioner found that Plaintiff’s impairments or combination of
impairments did not meet or equal the severity of one of the listed impairments. Tr. 23–24. The
ALJ determined that Plaintiff had the RFC to perform light work with the following limitations:
[C]laimant is limited to no climbing of ladders, scaffolds, and
ropes. The claimant is limited to no exposure to hazards such as
unprotected heights and moving mechanical parts. The claimant is
limited to occupations that do not require the operation of vehicles
such as automobiles, forklifts, carts, etc. The claimant is limited to
simple and routine tasks. The claimant is limited to occasional
interactions with coworkers and the public.
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At step four, the Commissioner determined that Plaintiff was unable to perform any past
relevant work. Tr. 29–30.
At step five, after considering Plaintiff’s age, education, work experience, and RFC, the
Commissioner determined that there were jobs that existed in significant numbers in the national
economy that Plaintiff could perform, including mail clerk and office helper. Tr. 30–31.
Therefore, the Commissioner concluded that Plaintiff was not under a disability as defined by the
Social Security Act. Tr. 31.
STANDARD OF REVIEW
A court may set aside the Commissioner’s denial of benefits only when the
Commissioner’s findings are based on legal error or are not supported by substantial evidence in
the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “Substantial
evidence means 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.” Id. (internal
quotation marks omitted). Courts consider the record as a whole, including both the evidence that
supports and detracts from the Commissioner’s decision. Id.; Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational
interpretation, the ALJ’s decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal
quotation marks omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
(“Where the evidence as a whole can support either a grant or a denial, [the court] may not
substitute [its] judgment for the ALJ’s.”) (internal quotation marks omitted).
Plaintiff raises four challenges to the ALJ’s decision for this Court’s review. First, she
argues that the ALJ failed to provide clear and convincing reasons for according little weight to
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the opinion of Dr. Craig Morton, Ph.D, a treating provider. Second, she argues that the ALJ
failed to provide sufficient reasons for discounting Plaintiff’s subjective symptom testimony.
Third, Plaintiff argues that the ALJ failed to provide germane reasons for discounting the thirdparty lay testimony of Shelia Hilliker, Plaintiff’s mother. Lastly, as the result of the purported
errors listed above, Plaintiff argues that the ALJ improperly formulated Plaintiff’s RFC to
conclude that a significant number of jobs existed in the national economy that Plaintiff could
Plaintiff contends that the ALJ erred in failing to Credit Dr. Morton’s opinion regarding
Plaintiff’s functionality. Dr. Morton wrote that Plaintiff had marked difficulty in maintaining
focus sufficient to communicate effectively. Tr. 690. He also wrote that her impairments in
concentration, memory, and speech caused her to struggle to follow all but the simplest
instructions and that her frustration stemming from those problems would, in turn, cause her to
be irritable in a manner that would not be tolerated by an employer or customer. Id. He also
opined that Plaintiff would miss two or more days of work in a single month due to her
impairments. Id. The ALJ accorded little weight to Dr. Morton’s opinion on the grounds that it
was inconsistent with the record, internally inconsistent, and not supported by a detailed
rationale. Tr. 28–29.
The uncontroverted opinion of a treating provider “cannot be disregarded unless clear and
convincing reasons for doing so exist and are set forth in proper detail.” Embrey v. Bowen, 849
F.2d 418, 422 (9th Cir. 1988). An ALJ’s clear and convincing reasons must be “supported by
substantial evidence.” Ryan v. Comm’r, 528 F.3d 1194, 1198 (9th Cir. 2008) (quoting Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). An ALJ will give “controlling weight” to a
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treating source’s opinion that is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence” in the record. 20
C.F.R. § 404.1527(c)(2). An ALJ may reject the opinion of a treating provider where the opinion
is: based largely on the claimants subjective complaints which have been discredited;
inconsistent with medical records; or is internally inconsistent with the provider’s own treatment
notes. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Morgan v.
Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601–02 (9th Cir. 1999); Valentine, 574 F.3d at 692–
93. “[T]he ALJ is the final arbiter with respect to resolving disputes in the medical evidence.”
Tommasetti v. Astrue, 533 F.3d 1035, 1041–42 (9th Cir. 2008) (citing Andrews v. Shalala, 53
F.3d 1035, 1039–40 (9th Cir. 1995)).
The ALJ’s stated the following regarding Dr. Morton’s opinion:
I give little weight to this opinion because it is not consistent with
the record as a whole and the opinion is not supported with any
explanation. Further, although Dr. Morton repeats what the
limitations are, he does not provide detail regarding the rationale
for the limitations or an explicit residual functional capacity
relating to the claimant’s ability to work. His opinion [sic] the
claimant’s behavior would “not be tolerated by an employer” is a
vocational determination, outside his scope of expertise. The
assessment is also internally inconsistent with his own records,
where he reported that the claimant appeared happier and less
irritable. At best, Dr. Morton’s treatment notes are sparse with
little narrative provided. I note that the only social limitation
discussed appeared to be alcohol related, and the most complete
treatment records revolved around drinking. When compared to
other treatment records, it appears that Dr. Morton based his
opinion in large part on the claimant’s subjective complaints and
the claimant’s interactions with other providers rather than his own
Tr. 28–29 (internal citations omitted).
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Inconsistencies with the Medical Record
A report’s consistency with other records, reports, or findings can form a legitimate basis
for evaluating the reliability of a report. Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996). A
medical provider’s opinion can be rejected if unsupported by medical findings, personal
observations, or test reports. Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998). Plaintiff
correctly points out that several of the portions of the record that Defendant identified predate
Plaintiff’s amended disability onset date. Defendant cited to several portions of the medical
record showing that Plaintiff’s mental status exams, thought content, memory, and speech were
typically within normal limits. See Def.’s Br. 3, ECF 25. The majority of those medical records,
however, were created prior to October 25, 2012, Plaintiff’s amended disability onset date.
“Medical opinions that predate the alleged onset of disability are of limited relevance.”
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (citing Fair v.
Bowen, 885 F.2d 597, 600 (9th Cir. 1989)). Defendant’s reliance on those portions of the record
that predate Plaintiff’s amended onset date, therefore, do not support the Commissioner’s
decision to accord little weight to Dr. Morton’s opinion.
There are, however, numerous other examples of mental status exams and objective
findings from within the relevant adjudicatory period showing that Plaintiff’s mental status,
mood, thought content, memory, and speech were within normal limits. Tr. 281–82 (noting
appropriate mood, speech, and thought content); Tr. 290–91 (also noting appropriate speech,
mood, and coherency of relevant thought in addition to Plaintiff’s “[f]ree floating anxieties and
Ruminations”); Tr. 470 (CT scan showing normal and unremarkable results); Tr. 528 (“Posture,
behavior, mood and affect all within normal limits. Orientation, judgment, insight, and memory
all within normal limits. Attention, concentration, and thought content all within normal
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limits. . . . [Plaintiff] feels calmer than in the recent past . . . .”); Tr. 529 (also noting Plaintiff’s
normal mood and thought content); Tr. 539, 550, 560, 672 (noting appropriate speech, mood, and
Plaintiff argues that at other times during that same period, medical providers noted that
she was tense, angry, and depressed. Tr. 550–551, 553–554. Plaintiff is asking the Court to
reweigh the evidence. Where the evidence is susceptible to more than one rational interpretation,
the ALJ’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
“Variable interpretations of the evidence are insignificant if the Commissioner’s interpretation is
a rational reading of the record, and the Court may not substitute its judgment for that of the
Commissioner.” Sessions v. Colvin, No. 6:13-CV-00633-CL, 2014 WL 1155303, at *3 (D. Or.
Mar. 20, 2014) (citing Burch, 400 F.3d at 676). “However, a reviewing court must consider the
entire record as a whole and may not affirm simply by isolating a ‘specific quantum of
supporting evidence.’” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). In sum, there is evidence to support the ALJ’s
determination that Dr. Morton’s opinion is inconsistent with the record as a whole; nevertheless,
the Court will review the remainder of the ALJ’s stated reasons for rejecting Dr. Morton’s
opinion. See Batson, 359 F.3d at 1197 (concluding that some of the ALJ’s reasons for rejecting a
claimant’s testimony were sufficient to uphold its credibility determination); Carmickle, 533
F.3d at 1162 (clarifying that the relevant inquiry is “whether the ALJ’s decision remains legally
valid” despite any error).
The ALJ found that Dr. Morton’s conclusion that Plaintiff’s irritability would be
unacceptable to an employer was a vocational conclusion, not a medical one. Dr. Morton stated
that Plaintiff’s irritability stemming from her “communication problems and unresolved physical
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symptoms” would “not be tolerated by an employer or a customer.” Tr 690. An opinion that a
claimant is disabled is not a medical opinion under the Act. See McLeod v. Astrue, 640 F.3d 881,
885 (9th Cir. 2011) (finding that while the treating physician’s evaluation of a patient’s ability to
work, as opposed to a diagnosis of an impairment, may be “useful or suggestive of useful
information,” a physician “ordinary does not consult a vocational expert or have the expertise of
one”). The Act does “not give any special significance to the source of an opinion on issues
reserved for the Commissioner” such as opinions that the claimant is disabled or unable to work.
20 C.F.R. § 404.1527(d). The nature and extent of Plaintiff’s irritability is an appropriate subject
for a medical opinion; however, the effects that Plaintiff’s irritability may have on an employer is
a vocational determination reserved for the Commissioner. In any event, the ALJ accounted for
Plaintiff’s irritability in her RFC by limiting Plaintiff to occasional interactions with coworkers
and the public. Tr. 25. Accordingly, the ALJ did not err in discrediting Dr. Morton’s opinion
regarding how an employer or customer would react to Plaintiff’s irritability.
The ALJ also found that Dr. Morton’s opinion was internally inconsistent. “A conflict
between treatment notes and a treating provider’s opinions may constitute an adequate reason to
discredit the opinions of the treating physician or another treating provider.” Ghanim v. Colvin,
763 F.3d 1154, 1161 (9th Cir. 2014) (citing Molina v. Astrue, 674 F.3d 1104, 1111–12 (9th Cir.
2012)). Dr. Morton stated in his written report that Plaintiff had marked difficulty in maintaining
focus and had impairments in concentration, memory, and clarity of speech. Tr. 690. In several
of his treatment notes, by contrast, Dr. Morton wrote that Plaintiff was happier and less irritable.
Tr. 525 (noting that Plaintiff: “Appeared more relaxed. Less angry. Smiling and Laughing. No
evidence of severe psychological distress”); Tr. 526 (noting that Plaintiff “is thinking more
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clearly and feeling calmer, though she is still angry[,]” and that she was “relatively clear [and]
not irritable” with him); Tr. 531 (noting that Plaintiff was “[i]rritable, though less so than in
previous session”); Tr. 671 (also noting that Plaintiff was happier and less irritable); Tr. 680
(“Some irritability, but also able to smile and laugh toward the end of the session. Speech vague
with some latencies. Tension. Difficulty concentrating but no evidence of racing thoughts and
rapid speech.”). Furthermore, Dr. Morton noted that Plaintiff’s mental health impairments were
lessened and her mood improved when she volunteered at thrift shop. Tr. 27, 684, 688.
Accordingly, the Court finds that substantial evidence in the record supported the ALJ’s decision
to discount Dr. Morton’s opinion because it was inconsistent with his own treatment notes.
Opinion Not Supported by a Detailed Rationale
Defendant argues that Dr. Morton’s opinion letter lacks support because his treatment
notes labeled “objective” or “assessment” did not contain mental health status examinations and
merely listed Plaintiff’s diagnoses. The ALJ found that Dr. Morton’s opinion was contrary to
treatment records and primarily based on Plaintiff’s subjective complaints and other providers’
interactions with Plaintiff rather than his own interactions. Tr. 29. “[T]he ALJ need not accept
the opinion of any physician, including a treating physician, if that opinion is brief, conclusory,
and inadequately supported by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d
1219, 1228 (9th Cir. 2009) (quoting Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)). As
discussed above, Dr. Morton’s opinion letter was inconsistent with his own treatment notes as
well as other medical evidence in the record. Rather, Dr. Morton appears to have based his
opinion on Plaintiff’s subjective symptom testimony which, as discussed below, the ALJ
properly discredited. Therefore, the ALJ did not err in concluding that Dr. Morton’s opinions
about Plaintiff’s capacities were inadequately supported by clinical findings.
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The Court concludes that the ALJ relied on legitimate bases for according Dr. Morton’s
opinion little weight.
Next, Plaintiff challenges the ALJ’s determination that her “statements concerning the
intensity, persistence and limiting effects of [her] symptoms are not entirely credible[.]” Tr. 26.
In particular, the ALJ found that Plaintiff’s neck problems, seizures, and self-reported mental
health problems were not credible. Tr. 26–27.
The ALJ is responsible for determining credibility. Vasquez, 572 F.3d at 591. Once a
claimant shows an underlying impairment and a causal relationship between the impairment and
some level of symptoms, clear and convincing reasons are needed to reject a claimant’s
testimony if there is no evidence of malingering. Carmickle, 533 F.3d at 1160 (absent affirmative
evidence that the plaintiff is malingering, “where the record includes objective medical evidence
establishing that the claimant suffers from an impairment that could reasonably produce the
symptoms of which he complains, an adverse credibility finding must be based on ‘clear and
convincing reasons’”); see also Molina, 674 F.3d at 1112 (the ALJ engages in two-step analysis
to determine credibility: First, the ALJ determines whether there is “objective medical evidence
of an underlying impairment which could reasonably be expected to produce the pain or other
symptoms alleged;” and second, if the claimant has presented such evidence, and there is no
evidence of malingering, then the ALJ must give “specific, clear and convincing reasons in order
to reject the claimant's testimony about the severity of the symptoms.”) (internal quotation marks
When determining the credibility of a plaintiff’s complaints of pain or other limitations,
the ALJ may properly consider several factors, including the plaintiff’s daily activities,
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inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and
relevant character evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may
also consider the ability to perform household chores, the lack of any side effects from
prescribed medications, and the unexplained absence of treatment for excessive pain. Id.; see
also Tommasetti, 533 F.3d at 1039 (“The ALJ may consider many factors in weighing a
claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the
claimant’s reputation for lying, prior inconsistent statements concerning the symptoms, and other
testimony by the claimant that appears less than candid; (2) unexplained or inadequately
explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the
claimant's daily activities.”) (internal quotation marks omitted).
As the Ninth Circuit explained in Molina;
In evaluating the claimant’s testimony, the ALJ may use ordinary
techniques of credibility evaluation. For instance, the ALJ may
consider inconsistencies either in the claimant’s testimony or
between the testimony and the claimant’s conduct, unexplained or
inadequately explained failure to seek treatment or to follow a
prescribed course of treatment, and whether the claimant engages
in daily activities inconsistent with the alleged symptoms[.] While
a claimant need not vegetate in a dark room in order to be eligible
for benefits, the ALJ may discredit a claimant’s testimony when
the claimant reports participation in everyday activities indicating
capacities that are transferable to a work setting[.] Even where
those activities suggest some difficulty functioning, they may be
grounds for discrediting the claimant's testimony to the extent that
they contradict claims of a totally debilitating impairment.
674 F.3d at 1112–13 (internal citations and quotation marks omitted).
At Plaintiff’s administrative hearing, she testified that she suffered from chronic neck
pain and stiffness which caused constant headaches and prevented her from turning her head. Tr.
49, 51–52. Plaintiff also testified that she suffered from frequent episodes of seizures. Tr. 54–55.
During Plaintiff’s alleged seizures, she claims that “everything starts going kind of surreal” and
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she “start[s] losing control of [her] arms and legs” and “slurring [her] words really bad” such that
she “can’t speak.” Tr. 55–55. She further testified that at its peak, she experienced fifteen
seizures in one week. Tr. 55. She claims that her seizures “destroy [her] whole day” and she
would sleep from eight to eighteen hours to recover afterward. Tr. 78. Regarding Plaintiff’s
claimed mental health symptoms, she testified that she suffered from manic episodes that would
render her unable to do anything for entire days. Tr. 60–61, 65.
Unsupported by the Medical Record
Regarding Plaintiff’s alleged neck problems, the ALJ found that examinations showed a
normal range of motion and that Plaintiff had no weakness or loss of sensation in that area. Tr.
26. Further, the ALJ noted that the record showed that Plaintiff’s neck pain and headaches
improved over time. Id. With respect to seizures, the ALJ found that Plaintiff’s episodes were
“unsubstantiated by any objective evidence or other supporting evidence.” Tr. 26. Specifically,
Plaintiff’s claim that she had fifteen seizures in one week was incredible in light of normal MRI
and EEG testing as well as medical exams showing no indication of seizures. Tr. 26. Indeed,
nothing in the medical record indicated that Plaintiff suffered from seizures. Tr. 635, 645, 660,
661, 671, 674. Plaintiff admitted that neurologists who reviewed two MRIs and a CAT scan
found no organic reason for Plaintiff’s alleged seizures. Tr. 52–53. Regarding Plaintiff’s selfreported mental health impairments, the ALJ wrote that Plaintiff reported being happier and less
anxious at times and that her “[m]ental status exams were within normal limits, with normal
mood, affect, concentration, and thought content were within normal limits.” Tr. 26.
Additionally, Plaintiff had reported in July 2012 that Xanax worked well to control her
symptoms. Tr. 26, 311. The ALJ wrote that as of October 2013 Plaintiff:
[R]eported that her life was in a ‘more stable phase.’ Her
depression symptoms were considered moderate with no evidence
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of severe psychological distress. During an appointment, she
appeared less angry, less irritable, she was more relaxed and the
claimant was smiling and laughing. In fact, the Claimant reported
improvement since stopping Topamax medication and thinking
Plaintiff points out that although she responded well to medication and her examinations
produced normal results, she still experienced severe periods and those same providers said that
she was at times unfocused, uncoordinated, angry and anxious. Tr. 490, 493, 497, 506, 508, 537,
550, 551, 554, 562, 575. The Court is unpersuaded by this argument. The ALJ properly relied on
the lack of support in the medical record for Plaintiff’s claimed mental health impairments as a
legitimate basis for rejecting her testimony regarding the severity and extent of her symptoms.
While there was evidence that Plaintiff’s mental health symptoms fluctuated, as discussed above,
there are numerous and consistent examples in the record showing that Plaintiff’s mental status
was within normal limits and that her symptoms improved over time and with medication.
Therefore, the Court concludes that the ALJ legitimately relied on the medical record to discount
Plaintiff’s subjective symptom testimony.
Activities of Daily Living
The ALJ also found that Plaintiff’s claimed symptoms were inconsistent with her work
activities and activities of daily living. Tr. 27. The ALJ noted that after her alleged onset date
Plaintiff volunteered at a thrift shop and cleaned houses up to five days a week. Tr. Tr. 27, 56–
57. Plaintiff stated that she volunteered at a thrift store two days a week for three and a half hours
at a time. Tr. 56–57. Plaintiff also testified that she cleaned her mother’s house and did yard
work, including mowing the lawn, weeding, and growing vegetables, usually for at least four
hours at a time. Tr. 66–67, 247, 295, 671. The ALJ noted that Plaintiff reported in March 2014
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that she did “yard work for fifteen hours during the period of three days.” Tr. 27, 671.
Additionally, Plaintiff reported that she used public transit, could walk for thirty to forty minutes,
and had “no problems with personal care, preparing simple meals and performing light
household chores” Tr. 27, 68, 244–51.
The nature and consistency of Plaintiff’s daily activities provided a legitimate basis for
the ALJ’s decision to reject her symptom testimony. There was substantial evidence supporting
the ALJ’s finding that Plaintiff’s daily activities “strongly suggest” that her impairments were
unsupported by the record and would not prevent her from working. Tr. 27. See Orn, 495 F.3d at
639 (“Claimant is able to spend a substantial part of his day engaged in pursuits involving the
performance of physical functions that are transferable to a work setting.”). While there was
some evidence suggesting that Plaintiff had “some difficulty functioning,” the ALJ identified
several activities discrediting Plaintiff’s “testimony to the extent that [it] contradict[ed] claims of
a totally debilitating impairment.” Molina, 674 F.3d at 1113 (citing Turner v. Comm’r of Soc.
Sec., 613 F.3d 1217, 1225 (9th Cir. 2010)). Plaintiff’s daily activities belying her claims of
totally disabling impairments includes, in part: volunteering at a thrift store, cleaning, working in
the yard, gardening, and walking for extended periods. Thus, the Court finds that the ALJ
properly relied on Plaintiff’s daily activities to reject her symptom testimony.
Lastly, the ALJ found “that given the general tone of the medical evidence in the record,
the claimant has generally been less than honest and at times manipulative with providers.” Tr.
27. For example, one provider wrote that Plaintiff threatened to kick her and “said that she had to
threaten to have a mental health crisis in order to get an appointment with a therapist.” Tr. 532.
Plaintiff “acknowledged being consciously manipulative.” Id. The ALJ concluded that such
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statements rendered Plaintiff’s mental-health allegations less than fully credible. Tr. 27. A lack
of candor with medical providers is a legitimate reason supporting an ALJ’s decision to reject a
plaintiff’s testimony. Ghanim, 763 F.3d at 1163 (stating that an ALJ may consider testimony
from the claimant that is less than candid in assessing credibility).The ALJ identified a
sufficiently specific example of Plaintiff’s behavior showing that she, on at least one occasion,
consciously manipulated medical providers and was not completely honest with them.
In this case, the ALJ provided specific, clear, and convincing reasons supported by
substantial evidence in the record for discounting Plaintiff’s subjective symptom testimony. The
ALJ found that her claimed symptoms were unsupported by medical evidence, inconsistent with
her work activities and activities of daily living, lessened by medication, and called into question
by her less than honest statements to medical providers. Tr. 26–27.
Lay Witness Testimony
Plaintiff argues that the ALJ erred in his consideration of the lay witness testimony of
Ms. Hilliker, Plaintiff’s mother. The ALJ gave Ms. Hilliker’s testimony partial weight and
declined to credit her statements regarding Plaintiff’s social functioning and irritability. “In
determining whether a claimant is disabled, an ALJ must consider lay witness testimony
concerning a claimant’s ability to work.” Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050,
1053 (9th Cir. 2006) (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)). Lay witness
testimony cannot be disregarded without comment and the ALJ must give germane reasons for
discounting such testimony. Molina, 674 F.3d at 1114. Germane reasons for discounting lay
witness testimony include: conflicting with medical evidence and inconsistency with the
plaintiff’s daily activities. Lewis v. Apfel, 236 F.3d 503, 511–12 (9th Cir. 2001). Another
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germane reason to discredit lay testimony is that it is substantially similar to the claimant’s
validly discredited allegations. Valentine, 574 F.3d at 694.
Ms. Hilliker submitted a third party report in which she stated that she spends “about 1
hour a day” with Plaintiff. Tr. 252. Together, they “attend church, visit with friends,” and “do
yard work.” Id. When prompted to explain how Plaintiff’s conditions limit her ability to work,
Ms. Hillker wrote: “Chronic pain throughout her body. Unable to concentrate. Occasional panic
attacks, anxiety, depression. She has hepatitis C, asthma, COPD, severe arthritis.” Id. She further
wrote that Plaintiff’s illnesses prevent her from concentrating on a subject, work for long
periods, and sit still and rest. Tr. 253. Regarding Plaintiff’s social issues, Ms. Hilliker wrote that
she: “sometimes is quick to take offense when none was intended. Unhappy and depressed. A
prickly personality at times. Very helpful to others in spite of troubles, overly emotional.” Tr.
256. Ms. Hilliker also reported that Plaintiff engaged in several activities including: cooking
meals daily, light chores, mowing, and walking to stores. Tr. 254–55. When asked to check
which items were affected by Plaintiff’s conditions, Ms. Hilliker checked the boxes indicating
memory, concentration, and using hands. Tr. 257.
The ALJ wrote:
I give partial weight to this assessment. The activities listed closely
resemble those described by the claimant, indicating few
functional limitations. I find the record, however, does not support
the hand limitation described by Ms. Hilliker. I note that despite
complaints about disabling panic attacks, the claimant was able to
use public transportation. But, I also note it is significant that Ms.
Hilliker did not report witnessing any seizures, despite claimant’s
assertions. Any limitations supported by the record have been
addressed in the residual functional capacity.
Tr. 28 (internal citations omitted). The Court finds that the ALJ gave germane reasons for
partially discounting Ms. Hilliker’s lay opinion. Ms. Hilliker’s indication that Plaintiff’s
18 - OPINION & ORDER
conditions limited her hand functioning was contradicted by Plaintiff’s daily activities and
unsupported by medical evidence in the record. Further, Ms. Hilliker’s statements regarding
Plaintiff’s social limitations were contradicted by Plaintiff’s social activities including
volunteering, attending church, visiting friends, and using public transportation. In any event,
Ms. Hilliker’s statement that Plaintiff could be a “prickly person” is appropriately reflected in
Plaintiff’s RFC which includes a limitation for only occasional interactions with coworkers and
the public. Accordingly, the Court finds that the ALJ’s treatment to Ms. Hilliker’s lay testimony
was not in error.
The ALJ’s Disability Determination
Because the Court finds that the ALJ’s determinations regarding Dr. Morton’s opinion,
Plaintiff’s symptom testimony, and Ms. Hilliker’s lay testimony were not in error, it concludes
that Plaintiff’s RFC was supported by substantial evidence and properly formulated.
Accordingly, the Court finds that the Commissioner carried its burden to prove that Plaintiff
retained the RFC to perform “other work” in the national economy. Therefore, the Court affirms
the ALJ’s ultimate disability determination.
Based on the foregoing, the Commissioner’s decision is affirmed and this case is
IT IS SO ORDERED.
day of ________________, 2017
MARCO A. HERNÁNDEZ
United States District Judge
19 - OPINION & ORDER
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