Fenn v. Commissioner Social Security Administration
OPINION AND ORDER. Signed on 9/21/2017 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MATTHEW ERIC FENN,
Case No. 6:16-cv-01004-AA
OPINION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Plaintiff Matthew Eric Fenn brings this action pursuant to the Social Security Act
("Act"), 42 U.S.C. § 405(g), to obtain judicial review ofa final decision of the Commissioner of
Social Security ("Commissioner").
The Commissioner denied plaintiffs applications for
Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI").
reasons set forth below, the Commissioner's decision is affitmed.
Page 1 - OPINION AND ORDER
In August 2011, plaintiff applied for DIB and SSL He alleged disability beginning
March 1, 2010, 1 due to degenerative disc disease, cognitive deficits stemming from head trauma,
bipolar disorder, and PTSD. Plaintiff later amended his alleged onset date to July 18, 2011, the
point at which he stopped working.
Plaintiff's applications were denied initially and upon reconsideration. On October 10,
2013, plaintiff appeared at a hearing before an ALJ. At plaintiff's counsel's request, the ALJ
held the record open and ordered a consultative psychological evaluation to assess plaintiffs
cognitive limitations and traumatic brain injury. On June 17, 2014, the ALJ convened a second
hearing. That hearing addressed the evaluation of the consultative examiner as well as a second
psychological evaluation, also conducted after the first hearing.
The ALJ found plaintiff not disabled in a written decision issued July 18, 2014. After the
Appeals Council denied review, plaintiff filed a complaint in this Court.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based upon proper
legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. §
405(g); Beny v. Astrue, 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 suppmt a conclusion." Gutierrez v. Comm 'r Soc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The court must weigh "both the
evidence that suppo1is and the evidence that detracts from the ALJ's conclusion." lvfayes v.
Plaintiffs DIB application lists an alleged onset date of January 1, 1997. This appears
to be an en-or; that date is not referenced anywhere else in the record and plaintiff continued to
work at the substantial gainful activity level for more than ten years after 1997.
Page 2 - OPINION AND ORDER
Afassanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one
interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed,
because "the court may not substitute its judgment for that of the Commissioner." Edlund v.
1vlassanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
The initial burden of proof rests upon the plaintiff to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986).
To meet this burden, the plaintiff must
demonstrate an "inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected ... to last for a continuous
period of not less than 12 months[.]" 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4);
id. § 416.920(a)(4). At step one, the ALJ found plaintiff had not engaged in "substantial gainful
activity" since the alleged disability onset date. 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id. §§
4 l 6.920(a)(4)(i), (b). At step two, the ALJ found plaintiff had the following severe impaitments:
"degenerative disc disease of the lumbar spine status post-laminectomy, mild degenerative disc
disease of the cervical spine, asthma, bipolar disorder, depression, anxiety, alcohol abuse, and
Tr. 23; 20 C.F.R. §§ 404.1520(a)(4)(ii), (c); id.
At step tiu·ee, the ALJ detetmined plaintiffs impairments, whether
considered singly or in combination, did not meet or equal "one of the listed impairments" that
the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20
C.F.R. §§ 404.1520(a)(4)(iii), (d); id. §§ 416.920(a)(4)(iii), (d).
Page 3 - OPINION AND ORDER
The ALJ then assessed plaintiff's residual functional capacity ("RFC"). 20 C.F.R. §
404.1520(e); id § 416.920(e). In addition to other limitations not relevant to this appeal, the
ALJ found plaintiff was
able to understand, remember, and carry out only simple instructions that can be
learned in 30 days or less. The claimant cannot have direct public contact. He is
able to perfonn in a low-stress job, which is defined as work that involves
minimal changes in the work setting and work duties.
Tr. 25. At step four, the ALJ concluded plaintiff could not perform any of his past relevant
work. 20 C.F.R. §§ 404.1520(a)(4)(iv), (f). At step five, however, the ALJ found that plaintiff
could perfo1m work existing in the national economy; specifically, plaintiff could work as a
small products assembler, an electronics assembler, or an office helper.
20 C.F.R. §§
404.1520(a)(4)(v), (g)(l). Accordingly, the ALJ found plaintiff not disabled and denied his
applications for benefits.
Plaintiff contends the ALJ committed three harmful e!Tors with respect to the extent of
his cognitive limitations. 2 First, plaintiff argues the ALJ gave little weight to his testimony about
the extent of his mental limitations without providing legally sufficient justification. Second,
plaintiff asserts the ALJ erred by giving little weight to the opinion of examining psychologist
Dr. Taubenfield. Finally, plaintiff avers the ALJ improperly rejected the statements of plaintiff's
wife, father, stepmother, and brother about the severity of his mental health symptoms.
Plaintiff's Subjective Symptom Statements
I begin with plaintiff's argument that the ALJ failed to provide legally sufficient reasons
to reject his testimony about the extent of his cognitive limitations. When a claimant's medically
Plaintiff does not argue that the ALJ should have assessed different or more restrictive
limitations due to his back pain or asthma. Accordingly, this opinion focuses solely on the ALJ's
evaluation of plaintiffs cognitive limitations.
Page 4 - OPINION AND ORDER
documented impairments reasonably could be expected to produce some degree of the symptoms
complained of, and the record contains no affirmative evidence of malingering, "the ALJ can
reject the claimant's testimony about the severity of ... symptoms only by offering specific,
clear and convincing reasons for doing so." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir.
1996). A general assertion that the claimant is not credible is insufficient; the ALJ must "state
which ... testimony is not credible and what evidence suggests the complaints are not credible."
Dodrill v. Shala/a, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently
specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the
claimant's testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir. 1995). If the "ALJ's
credibility finding is supported by substantial evidence in the record, [the court] may not engage
in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
At the first hearing, the ALJ asked plaintiff why he was unable to return to some type of
"very easy" work. Tr. 58. Plaintiff responded "[b]ecause of my cln·onic back and my bipolar, I
have an extreme anxiety, and depression, and I [am] really forgetful. And I have a hard time
staying on task." Id. When pressed to provide specific examples of difficulty staying on task,
plaintiff stated that he has left the stove burner on a few times and that he was unable to work for
his brother in part because he couldn't focus.
Plaintiff lives with his grandfather and they "help each other," but the grandfather "helps
me more than I help him."
Plaintiff testified that he is not staying with his
grandfather as his caregiver but because he needed a place to live. He helps his grandfather by
doing laundry and preparing simple meals. He reads the paper but immediately forgets what he
read. However, he does not need to be reminded to take medications and uses no special system
to help himself remember. He is able to drive by himself and he never gets lost. He goes to the
Page 5 - OPINION AND ORDER
store by himself, though he uses a list to help remember what he needs to purchase. At the
second hearing, plaintiff repo1ied that his then-nine-year-old daughter had begun living with him
full-time and that he was responsible for getting her to school and preparing meals for her.
The ALJ found that plaintiffs symptoms were "not suppmied to the extent repmied"
based on "the findings on examination and imaging, the level of treatment prescribed,
observations made by treating and examining sources, and the claimant's activities." Tr. 26.
The ALJ also asserted there were several inconsistencies between plaintiffs statements in the
record that "significantly affect his credibility."3 Id
However, the ALJ credited plaintiffs
statements about his symptoms "to the extent they were consistent with the overall record and
supported by objective evidence." Id.
The ALJ cited several specific examples of inconsistent statements. First, the ALJ noted
that in a previous disability application, plaintiff had asserted he needed his wife's help for most
activities of daily living. But by the time of the hearing, plaintiff and his wife had separated and
plaintiff was living with his grandfather. The ALJ acknowledged plaintiffs statements that his
grandfather was taking care of him rather than the other way around, but found those statements
inconsistent with plaintiffs repeated assertions to treating mental health counselors that he was
acting as his grandfather's caregiver. The ALJ found the inconsistency pmiicularly clear in view
Pursuant to SSR 16-3p, the term "credibility" has been eliminated from Social Security
sub-regulatory policy. See Trevizo v. Berryhill, 862 F.3d 987, 1000 n.5 (9th Cir. 2017). The
term was removed to clarify that "assessments of an individual's testimony by an ALJ are
designed to evaluate the intensity and persistence of symptoms ... and not to delve into wideranging scrutiny of the claimant's character for truthfulness." Id (citations and quotation marks
omitted). Although the decision currently under review uses this now-disfavored term, the ALJ
made clear she understood the purpose of evaluating a claimant's subjective symptom
statements. She expressly noted that, in a Social Security disability decision, "assessment of
credibility is not a determination of truthfulness, motive, intention, or sincerity." Tr. 26. Instead,
"[c]redibility refers to whether the info1mation is accurate, consistent, supported by objective
medical findings, and consistent with actual activities." Id
Page 6 ~OPINION AND ORDER
of plaintiffs testimony at the hearing that he was truthful to those counselors. Plaintiff argues
that these inconsistencies are actually evidence of his cognitive impairment, particularly his
problems with memory and limited insight. Although that is one plausible way to interpret the
evidence, the record does not compel that conclusion. See Batson v. Comm 'r Soc. Sec. Admin.,
359 F.3d 1190, 1196 (9th Cir. 2004) (requiring com1s to uphold the Commissioner even where
evidence exists to supp011 more than one rational interpretation).
The ALJ did identify one inconsistency that is not a convincing reason to discredit
plaintiffs testimony: she discussed conflicting statements regarding whether and how frequently
plaintiff uses marijuana. Evidence of dishonesty regarding drug use can be relevant when it
suppo11s the inference that the plaintiff may have exaggerated symptoms to obtain medication.
Edlund, 253 F.3d at 1157. Here, although there is evidence plaintiff lied about his drug use, it is
unclear how such inconsistencies bear on the reliability of plaintiffs statements about his
symptoms because there is no indication he exaggerated his condition in order to obtain
With that exception, however, the inconsistencies the ALJ identified are clear,
convincing reasons to give less weight to plaintiffs testimony. See Ghanim v. Colvin, 763 F.3d
1154, 1163 (9th Cir. 2014) (holding that an ALJ may consider prior inconsistent statements
concerning symptoms in weighing subjective symptom testimony).
The ALJ also found plaintiffs testimony about the extent of his cognitive problems
inconsistent with his activities of daily living. Specifically, the ALJ concluded that a person
suffering symptoms as severe as those alleged by plaintiff would be unable to drive without
problems, prepare meals, do household chores, help care for an elderly relative, and have fulltime custody of a child in elementary school. This, too, is a clear, convincing reason to doubt
plaintiffs symptom allegations. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (stating
Page 7 - OPINION AND ORDER
that "daily activities may be grounds" to question a plaintiffs testimony about symptom severity
when those activities "contradict [the plaintiffs] other testimony").
The ALJ also found plaintiffs rep01i of cognitive limitations brought on by an assault
and acute head trauma in July 2011 unsupported by the record. Medical records following that
incident document severely broken facial bones but no brain abnormality. Plaintiff did not have
surgery after the incident. Standing alone, this absence of objective support for alleged symptom
severity would be an insufficient reason to reject plaintiffs symptom testimony. See Smolen, 80
F.3d at 1282. But because the ALJ provided several other reasons to doubt the validity of that
testimony, the ALJ permissibly considered the absence of objective evidence connecting the July
2011 incident to plaintiffs cognitive limitations evaluating his symptoms. See Batson, 359 F.3d
Next, the ALJ observed that, "[i]n contrast to claimant's adamant assertions that he has
difficulty remembering and concentrating due to a severe head injury, at the June 2014 hearing,
he had absolutely no problem remembering the details and distinctions of two separate
neuropsychological evaluations he attended months earlier. He also recited the details of his past
work without trouble." Tr. 28. Unlike the failure to demonstrate pain or fatigue at a hearing, this
sort of concrete "conflict between alleged symptoms and abilities demonstrated at the hearing ...
may be considered in evaluating symptom testimony."
See lvfoore v. Benyhill, 2017 WL
3642102, *5 (D. Or. Aug. 24, 2017) (summarizing Ninth Circuit law on "sit and squirm"
jurisprudence to determine when an ALJ may properly take into account her firsthand
observations of a claimant's behavior).
Finally, the ALJ referred to evidence that plaintiffs bipolar disorder has responded well
to medication and that he has obtained essentially routine treatment with medication and
Page 8 - OPINION AND ORDER
counseling since an acute manic episode in 2011. The ALJ acknowledged the severity of that
episode, during which plaintiff ran through four lanes of traffic naked and threatened to kill
himself and others with a sword. But the ALJ found the seriousness of the episode mitigated by
plaintiffs discharge from the hospital after just a short stay, due to medication which brought his
Global Assessment Functioning ("GAF") score from 30 (indicating "inability to function in
almost all areas" or behavior "considerably influence by delusions or hallucinations") upon
admission to 70 (indicating mild symptoms) upon discharge. American Psychiatric Association
Diagnostic and Statistical Manual of Mental Disorders, Fom1h Edition Text Revision ("DSMIV") 34 (2000). This description of the record contains errors; most notably, plaintiffs GAF
score was achially 40, not 70, when he was discharged from the hospital. Tr. 734. A GAF score
of 40 indicates "some impaitment in reality testing or communication" or "major impairment in
several areas, such as work or school, family relations, judgment, thinking, or mood." DSM-IV
at 34. Thus, upon discharge, plaintiff was still experiencing substantial difficulty functioning.
However, the record shows that plaintiff promptly established care at Douglas County Mental
Health. About a month after the manic episode, his counselor there assessed a GAF score of 70.
Treatment documents since the manic episode show two years of relatively consistent
individual counseling and group therapy in which treating providers assessed GAF scores of 60,
indicating "moderate symptoms" or "moderate difficulty in social, occupational, or school
DSM-IV at 34.
There is no evidence plaintiff has had an episode of
decompensation since 2011.
Viewing the evidence as a whole, even taking into account the eirnr regarding GAF on
discharge, the ALJ reasonably characterized plaintiffs mental health treatment as routine and
Page 9 - OPINION AND ORDER
conservative. That is a clear, convincing reason to doubt subjective symptom testimony. See
Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (holding that an ALJ permissibly may
infer from conservative treatment that an impairment is not as disabling as alleged). The ALJ
strayed into shaky territory when she noted plaintiffs spotty compliance with medication
regimens and uneven counseling attendance. See Garrison v. Colvin, 759 F.3d 995, 1018 (9th
Cir. 2014) (disapproving use of a plaintiffs "occasional decisions" to go "off her meds" when
those decisions "were at least in part a result of her underlying bipolar disorder and her other
psychiatric issues"). But in view of the rest of the ALJ's reasoning, any eirnr was harmless. See
Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
In sum, the ALJ supported her decision to give limited weight to plaintiffs symptom
testimony with clear, convincing reasons supported by substantial evidence. Moreover, to the
extent plaintiffs testimony was consistent with the record as a whole and with objective medical
evidence, the ALJ adequately accounted for that testimony by including limitations in the RFC
requiring easy-to-understand and -remember instructions in the workplace, no public contact,
and a low-stress job with minimal changes in setting and duties.
Treatment oflvfedical Opinions
Plaintiff challenges the ALJ's treatment of two medical opinions: the opinion of
examining psychologist Dr. Taubenfield and the opinion of examining psychologist Dr.
Villanueva. Specifically, plaintiff contends the ALJ erred by crediting Dr. Villanueva's opinion
regarding his mental limitations and rejecting Dr. Taubenfield's evaluation of those same
There are three types of medical opinions in Social Security disability cases: those of
treating, examining, and reviewing physicians. Holohan v. 1'1assanari, 246 F.3d 1195, 1201-02
Page 10 - OPINION AND ORDER
(9th Cir. 2001).
"Generally, a treating physician's opinion catTies more weight than an
examining physician's, and an examining physician's opinion carries more weight than a
Id. at 1202; accord 20 C.F.R. § 404.1527(d).
Commissioner must provide clear and convincing reasons for rejecting the uncontradicted
opinion of an examining physician." Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995).
Moreover, "the opinion of an examining doctor, even if contracted by another doctor, can only
be rejected for specific and legitimate reasons." Id. at 830-831.
"The ALJ is responsible for resolving conflicts in the medical record." Carmickle, 533
F.3d at 1164. "Where the evidence is susceptible to more than one rational interpretation, it is
the ALJ' s conclusion that must be upheld." See Morgan v. Comm 'r of Soc. Sec. Admin., 169
F.3d 595, 599 (9th Cir. 1999). "[T]he consistency of the medical opinion with the record as a
whole" is a relevant consideration in weighing competing evidence. Orn, 495 F.3d at 631.
After the first hearing, the ALJ referred plaintiff to Dr. Villanueva for a psychological
Dr. Villanueva conducted a clinical interview and evaluated the results of
standardized tests performed by a technician. Those test results indicated borderline intellectual
functioning. In his report, Dr. Villanueva found the test results unreliable for several reasons.
First, he found borderline intellectual functioning inconsistent with plaintiff's demonstrated
capacities during the evaluation, including his ability to provide a coherent, sequential, detailed
history and his attention to task and directions. Second, he found the test results difficult to
square with plaintiff's educational and work history, particularly the fact that he did not require
special education services and was able to work full-time in competitive jobs for thirteen years.
Third, Dr. Villanueva did not believe a person with such borderline intellectual ability would be
Page 11 - OPINION AND ORDER
able to drive without problems. Finally, Dr. Villanueva stated that the July 2011 incident could
not explain sudden onset of such severe cognitive symptoms:
Borderline intellectual functioning, with memory scores falling two and half
standard deviations below the mean, would not be explained by mild head injury.
There are no indications from the claimant's history of a greater than a mild head
injury. The head injury would need to be extremely severe to create these types
Tr. 974. Dr. Villanueva opined that plaintiffs cognitive limitations would produce no relevant
Plaintiff also was evaluated by Dr. Taubenfield. Dr. Taubenfield conducted a clinical
interview and he administered more extensive objective testing than Dr. Villanueva. The test
results obtained by the two doctors were remarkably consistent. However, Dr. Taubenfield
reached dramatically different conclusions from those results. He drew a connection between
previous assaults documented in plaintiffs medical history and the July 2011 assault, and
concluded the manic episode was a result of PTSD triggered by that assault. Dr. Taubenfield
also noted that plaintiffs memory test results are "significantly weaker than general intelligence
scores," a result he considered strongly suggestive of dementia. Tr. 990. He found significant
deficits in executive functioning. Dr. Taubenfield confomed plaintiffs diagnoses of bipolar
disorder and alcohol/cannabis abuse in remission, and also diagnosed panic disorder, social
phobia, PTSD, dysthymia, ADHD, dementia, borderline intellectual functioning, and dependent
personality disorder with avoided, antisocial, borderline, and negativistic traits. He assessed a
GAF of 45. Dr. Taubenfield reviewed statements by plaintiffs brother and stepmother and
found them consistent with his assessment.
He predicted that twelve percent of the time,
plaintiff would be unable to perform adequately in a full-time work setting.
Page 12 - OPINION AND ORDER
Faced with these two irreconcilable opinions, the ALJ gave significant weight to Dr.
Villanueva's report. She found that repmi "consistent with the overall record, which documents"
improvement and stabilization following the July 2011 manic episode. Tr. 29. By contrast, she
gave little weight to Dr. Taubenfield's opinion.
The ALJ noted that the limitations in Dr.
Taubenfield's opinion went substantially further than limitations expressed by any treating
mental health provider, rendering them inconsistent with the treatment record overall. She noted
that apati from Dr. Taubenfield's opinion, the medical record is devoid of "observations,
findings, or referrals indicating the level of cognitive impairment alleged by the claimant and
reiterated by Dr. Taubenfield." Id. In patticular, the ALJ found Dr. Taubenfield's assessment of
a GAF of 45 inconsistent with treatment records consistently assessing a GAF of 60. The ALJ
cited Dr. Taubenfield's reliance on "subjective reports and efforts on testing" as a reason to
doubt the opinion's reliability. Id. She noted that plaintiffs treating mental health counselors
never adopted Dr. Taubenfield's diagnosis of PTSD. Finally, the ALJ stated that plaintiff was
not honest with Dr. Taubenfield about his marijuana use.
The ALJ' s reasoning contains one error: although, as indicated above, the record contains
inconsistent statements about marijuana use, it is not clear that plaintiff was dishonest with Dr.
Taubenjield about marijuana use. The purported inconsistency is between plaintiffs December
2013 statement to Dr. Villanueva that he had smoked marijuana three times in the past three
months and plaintiffs January 2014 statement to Dr. Taubenfield that he had not smoked any
marijuana since November 2013. But those statements are not clearly inconsistent with one
another; plaintiff could have smoked marijuana three times in the tlu·ee months leading up to his
December 2013 evaluation yet still stopped smoking sometime in November 2013. Accordingly,
this alleged inconsistency is not a legitimate reason to discredit Dr. Taubenfield's opinion.
Page 13 - OPINION AND ORDER
But the ALJ provided several specific, legitimate reasons to give little weight to Dr.
Taubenfield's opinion. Dr. Taubenfield's opinion is not only inconsistent with Dr. Villanueva's
opinion, it is inconsistent with the observations and GAF scores consistently documented over
two years of treatment with Douglas County Mental Health. Not only did the Douglas County
counselors consistently assess a GAF of 60, they never suggested that plaintiffs treatment
should be escalated due to symptom severity. See Orn, 495 F.3d at 631 (approving consistency
with the medical record as a valid factor in evaluating medical opinions).
Taubenfield's report relied in large pat1 on plaintiffs subjective reports of his own symptoms,
which the ALJ permissibly discredited. See Batson, 349 F.3d at 1195 (endorsing giving less
weight to a medical opinion when it is based in large part on properly-discredited subjective
Finally, the ALJ correctly noted that although plaintiffs treating
counselors were aware of the PTSD diagnosis, they did not adopt it. The evidentiary value of
that fact is limited; as plaintiff notes, there is no evidence the Douglas County staff had access to
Dr. Taubenfield's foll repot1. Nonetheless, because the record shows the counselors were aware
of the diagnosis, the ALJ permissibly considered the treating providers' failure to reevaluate
plaintiff for PTSD in weighing Dr. Taubenfield's opinion.
Plaintiff points out that objective test results suppmt Dr. Taubenfield's diagnosis of
borderline intellectual functioning, which in tum suppotts Dr. Taubenfield's prediction plaintiff
would be off task at work twelve percent of the time. Ordinarily, such test results would be
powerful evidence to support Dr. Taubenfield's conclusions. But here, the ALJ was faced with
two examining medical professionals who reached wildly divergent conclusions based on largely
the same evidence. Dr. Taubenfield's opinion is more consistent with plaintiffs test scores and
provides an explanation for plaintiffs manic episode, but Dr. Villanueva's opinion is more
Page 14- OPINION AND ORDER
consistent with plaintiffs work histo1y, educational history, and activities of daily living. The
ALJ had the duty to resolve that conflict, and doing so necessarily required discrediting at least
one of the opinions.
Plaintiff argues that the ALJ was required to accept Dr. Taubenfield's opinion because it
was based on a more complete set of evidence, including Dr. Villanueva's evaluation and
statements from plaintiffs stepmother and brother. Once again, plaintiff advances a plausible
alternative interpretation of the evidence.
But that is insufficient to justify overturning the
ALJ's decision because the ALJ's interpretation is also supported by substantial evidence.
Batson, 359 F.3d at 1196.
The ALJ provided specific, legitimate reasons to support her decision to give less weight
to the opinion of Dr. Taubenfield.
Lay Witness Statements
Finally, plaintiff argues the ALJ erred in rejecting the statements of plaintiffs wife,
father, stepmother, and brother. In general, "lay witness testimony as to a claimant's symptoms
or how an impaiiment affects ability to work is competent evidence ... and therefore cannot be
disregarded without comment." Nguyen v. Cater, 100 F.3d 1462, 1467 (9th Cir. 1996) (emphasis
omitted). This is because "[aJn eyewitness can often tell whether someone is suffering or merely
malingering," particularly if the witness "view[s] the claimant on a daily basis[.]" Dodrill, 12
F.3d at 919. An ALJ may discount lay witness testimony only by providing reasons that are
"ge1mane" to each witness. Id. However, the ALJ need not "discuss eve1y witness's testimony
on an individualized, witness-by-witness basis. Rather, if the ALJ gives germane reasons for
rejecting testimony by one witness, the ALJ need only point to those reasons when rejecting
Page 15 - OPINION AND ORDER
similar testimony by a different witness." i\folina v. Astrne, 674 F.3d 1104, 1114 (9th Cir. 2012)
Plaintiffs wife, Laurie Fenn, provided two written statements. In the first statement,
dated May 2010, Ms. Fenn stated plaintiff "has a very hard time concentrating and gets very
frustrated that he is unable to do what he was able to do before injury." Tr. 368. In the second
statement, dated September 2011, Ms. Fenn rep01ied that it "seems hard for [plaintiff] to
concentrate on anything for any length of time" and that plaintiff "has a very hard time
completing tasks on his own." Tr. 417, 420. Plaintiffs father, Leo Fenn, testified at the October
2013 hearing. He stated that plaintiff is "childlike," lacks the ability to "manage his life," and is
"forgetful." Tr. 91, 93. He stated that plaintiff could not live independently and that plaintiffs
grandfather cares for plaintiff, not the other way around. Plaintiffs stepmother, Bemis Wagner,
submitted a letter. Ms. Wagner owns a real estate business. She hired plaintiff do handyman
work such as cleaning up yards, removing debris, sweeping, and cleaning gutters. She reported
it was "impossible" for him to do the work because "[h]e is always in a daze, he shuffles his feet
as he walks and cannot stay on task. He has to be under constant supervision. If you leave him
for even a few minutes, he stops working and forgets what he was to do." Tr. 456. Plaintiffs
brother, Scott Fenn, submitted a similar letter. Mr. Fenn owns a yardwork business and stated
that after giving plaintiff a chance, he concluded plaintiff lacks the "attention to detail, selfmotivation, the ability to follow directions, mow straight lines, remember ce1iain things for
different properties, ... and communicate with the customer and fellow workers" necessary to
successfully work for the company. Tr. 458.
Regarding Ms. Fenn's first statement, the ALJ "generally credit[ed] the information that
is consistent throughout the reports regarding the claimant's daily activities and the effect of pain
Page 16- OPINION AND ORDER
on his functioning to the extent those are consistent with the overall record and supported by
objective evidence." Tr. 26. The ALJ did not discuss Ms. Fenn's second statement. As for
plaintiffs father's testimony, the ALJ found it inconsistent with the observations of plaintiffs
treating sources and with plaintiffs repmis regarding his own activities. Tuming to the letters
submitted by Ms. Wagner and plaintiffs brother, the ALJ gave them little weight because they
were not consistent with the record as a whole or with claimant's activities, in paiiicular his
ability to care for his grandfather, live independently from his wife, and care for his daughter.
The ALJ provided germane reasons to reject Ms. Fenn's first statement and the other lay
witness statements. The ALJ permissibly found. the lay witnesses' statements about plaintiffs
inability to stay on task are inconsistent with plaintiffs daily activities. It is reasonable to
conclude that a person who cannot remember what he is doing if left unattended for even a few
minutes could not care for a ten-year-old child or prepare meals and otherwise assist in the care
of an elderly relative. The ALJ was not required to accept plaintiffs father's testimony that
plaintiffs grandfather actually cares for plaintiff because that testimony was inconsistent with
plaintiffs repeated, contrary statements to treating mental health providers. To the extent the lay
witnesses' statements suppmi less restrictive cognitive limitations, those limitations are
adequately accounted for by the mental restrictions in the RFC.
The ALJ erred by failing to address Ms. Fenn's second statement. However, that error
was harmless because the reasons the ALJ relied upon to discredit the other lay witness
statements are equally applicable to Ms. Fenn's second statement.
Page 17 - OPINION AND ORDER
The Commissioner's decision is AFFIRMED and this case is DISMISSED.
IT IS SO ORDERED.
,;;;s/_ day of September 2017.
United States District Judge
Page 18 - OPINION AND ORDER
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