Workman v. Commissioner Social Security Administration

Filing 25

OPINION & ORDER: The Court Affirms the Commissioner's decision because it is free of harmful legal error and supported by substantial evidence. Signed on 10/23/17 by Magistrate Judge Stacie F. Beckerman. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CHRISTINA A. WORKMAN,
Plaintiff,

Case No. 6:16-cv-01507-SB
OPINION AND ORDER

v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
BECKERMAN, Magistrate Judge.
Christina Workman (“Workman”) brings this appeal challenging the Commissioner of
Social Security’s (“Commissioner”) denial of her applications for Child’s Insurance Benefits
(“CIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 401-34, 1381-83f. The Court has jurisdiction to hear this appeal
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, the Court affirms
the Commissioner’s decision because it is free of harmful legal error and supported by
substantial evidence.

PAGE 1 – OPINION AND ORDER

BACKGROUND
Workman was born in September 1992. She lives with her husband and two young
children, and has a high school diploma, a history of attending college classes, and no past work
experience. Workman alleges disability as of her date of birth due primarily to Asperger’s
Syndrome, absence seizures, depression, and anxiety.
In April and May 2008, Workman’s high school reviewed her eligibility for special
education services. (Tr. 445-53.) As part of this process, the high school measured Workman’s
general intellectual functioning level using the Wechsler Intelligence Scale for Children, Fourth
Edition (“WISC-IV”). On the WISC-IV, Workman’s overall ability for learning was in the
“average range at the 55th percentile,” her verbal comprehension was in the “average range at
the 55th percentile,” her perceptual reasoning was in the “average range at the 39th percentile,”
her working memory was in the “high average range at the 81st percentile,” and her processing
speed was in the “average [range] at the 27th percentile.” (Tr. 449.) Workman also obtained a
full-scale intelligent quotient (“IQ”) score of 102 on the WISC-IV,1 and scored in the “96th
percentile” on the Bender-Gestalt II.2 (Tr. 299, 453.) On the Woodcock-Johnson Tests of
Achievement, Third Edition (“WJ-III”), however, Workman’s reading comprehension level was
“significantly below her cognitive ability” and she exhibited “some significant articulation
problems” due to a speech impediment. (Tr. 450-51.) Accordingly, school officials, who initially
considered discharging Workman from special education services, concluded that Workman
1

A full-scale IQ of 102 suggests that Workman is “generally functioning in the average
range.” See Halbrook v. Chater, 925 F. Supp. 563, 565 (N.D. Ill. 1996) (stating that the claimant
had “a full-scale IQ of 105, which indicates that he is generally functioning in the average
range”).
2

The Bender-Gestalt II is “a test designed primarily to screen for developmental
disorders or assess neurological function or brain damage.” Scott v. Comm’r Soc. Sec., No. 100061, 2011 WL 720198, at *4 (N.D. Ohio Jan. 25, 2011).
PAGE 2 – OPINION AND ORDER

continued to be eligible for special education services based on an Autism Spectrum Disorder.
(Tr. 446-48.)
On March 14, 2011, Workman received the following results on the WJ-III: “[O]ral
language skills are average when compared to the range of scores obtained by others at her age
level; oral expression skills are low average; . . . listening comprehension skills are
average; . . . ability to apply academic skills is average; . . . high average in written expression
and average in basic reading skills, reading comprehension, math calculation skills and math
reasoning.” (Tr. 300.)
In a letter dated July 27, 2011, Workman’s treating physician, Dr. Aric Groshong (“Dr.
Groshong”), stated that Workman had been diagnosed in the past with attention deficit disorder
(“ADD”) and Asperger’s Syndrome, had “not been on medication since at least 2006,” received
“speech therapy at school,” and reported “functioning well in the school [and] home settings,”
although “she continued to exhibit some mild symptoms of ADD.” (Tr. 376.) Dr. Groshong
added that a seizure disorder “was also [a] past consideration,” but testing results suggested that
Workman was not “likely [suffering from] seizures.” (Tr. 376.) Dr. Groshong also stated that he
was not aware of “any further difficulties” related to seizures or any “physical limitations,” and
that during Workman’s last check-up in 2007, she reported that her school work was improving.
(Tr. 376.)
On May 7, 2011, Dr. Bill Hennings (“Dr. Hennings”), a non-examining state agency
psychologist, completed a mental residual functional capacity assessment based on his review of
Workman’s medical records. (Tr. 92-94.) Dr. Hennings concluded that Workman was not
significantly limited in thirteen categories of mental activity relating to an individual’s
“understanding and memory limitations,” “sustained concentration and persistence limitations,”

PAGE 3 – OPINION AND ORDER

and “social interaction limitations.” (Tr. 92-93.) Dr. Hennings also found that Workman was
moderately limited in her ability to understand and remember detailed instructions, to carry out
detailed instructions, and to interact appropriately with the general public. Dr. Hennings added
that Workman is capable of understanding and remembering one- to two-step instructions,
carrying out and maintaining the concentration and persistence necessary to perform one- to twostep tasks, engaging in appropriate interactions with co-workers and supervisors, and
occasionally interacting with the general public.
Also on May 7, 2011, Dr. Hennings completed a psychiatric review technique
assessment. (Tr. 90-91.) Dr. Hennings concluded that the limitations imposed by Workman’s
mental impairments failed to satisfy listings 12.06 (anxiety-related disorders) and 12.10 (autistic
disorders).
Between September 2011 and January 2012, Workman was treated for depression at the
Douglas County Mental Health Division. (Tr. 396-411.) In a discharge summary report, social
worker Stacy Nielsen (“Nielsen”) concluded that Workman’s Global Assessment of Functioning
(“GAF”) was sixty-one,3 and noted that Workman had been diagnosed with mild depression and
had a history of ADD and Asperger’s Syndrome. Neilsen reported that ongoing therapy was
unwarranted because Workman reported that her “symptoms of depression are being managed
through exercise, maintaining with her church and developing a ministry mission and attending
[Umpqua Community College].” (Tr. 396-97.) In a mental status examination report, William
3

“GAF rates overall psychological functioning on a scale of 0–100 that takes into
account psychological, social, and occupational functioning.” Zabala v. Astrue, 595 F.3d 402,
405 n.1 (2d Cir. 2010). “A GAF in the range of 61 to 70 indicates some mild symptoms (e.g.,
depressed mood and mild insomnia) OR some difficulty in social, occupational, or school
functioning (e.g., occasional truancy, or theft within the household), but generally functioning
pretty well, has some meaningful interpersonal relationships.” Id. (citation, quotation marks, and
brackets omitted).
PAGE 4 – OPINION AND ORDER

Conley (“Conley”), a licensed therapist, also noted that Workman’s behavior, thought content,
memory, perception, insight, judgment, and intellectual functioning were all within normal
limits. (Tr. 402-04.)
Not long after she began receiving treatment at the Douglas County Mental Health
Division, Workman was referred to Dr. Allan Kirkendall (“Dr. Kirkendall”) for a psychological
evaluation. (Tr. 389-92.) In a psychological evaluation report dated October 4, 2011, Dr.
Kirkendall observed that Workman (1) complained primarily of difficulties sustaining attention
without the ADD medication she stopped taking in 2006, chronic headaches, her fiancé’s
“significant emotional and legal troubles,” and a speech impediment, which “make[s] it difficult
for her to be around people” because she was teased so often in the past, (2) “did not appear to
exaggerate difficulties” and was “not seen as malingering,” (3) exhibited “some symptoms” of
posttraumatic stress disorder, (4) has a “marked speech impediment” and a past diagnosis of
Asperger’s Syndrome, which was consistent with “some of the odd behaviors” Workman
exhibited during the evaluation, (5) appears to have “survived a very chaotic and at times abusive
childhood,” appears to be able to “understand and remember instructions given to her most of the
time,” appears to have “some ability to maintain concentration and attention,” and appears to be
suffering from “some social anxiety,” and (6) can “take care of her own activities of daily living
with minimal assistance but she’s not able to manage her own day-to-day affairs or effectively
plan for the future[.]” (Tr. 390-92.)
Based on the foregoing, Dr. Kirkendall’s diagnoses were: Axis I—Asperger’s Syndrome,
generalized social anxiety, and “[r]ule out” posttraumatic stress disorder,4 Axis II—no diagnoses,

4

The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSMIV”) “is the standard classification of mental disorders used by mental health professionals in the
United States.” Ortiz-Morales v. Shinseki, No. 07-3750, 2010 WL 2978436, at *2 n.1 (Vet. App.
PAGE 5 – OPINION AND ORDER

Axis III—chronic headaches, Axis IV—the lack of “any primary support group beyond her
elderly grandmother,” the fact that Workman “may well be involved with an older predatory
male,” “marked economic problems,” “problems accessing healthcare service,” and the fact that
Workman “is currently living in a shelter for homeless teenagers,” and Axis V—a GAF score of
fifty.5
On March 26, 2012, Dr. Kordell Kennemer (“Dr. Kennemer”), a non-examining state
agency psychologist, completed a mental residual functional capacity assessment. (Tr. 117-18.)
Dr. Kennemer agreed with Dr. Hennings’ findings that Workman is (1) not significantly limited
in thirteen categories of mental activity relating to an individual’s “understanding and memory
limitations,” “sustained concentration and persistence limitations,” and “social interaction
limitations,” (2) moderately limited in her ability to understand and remember detailed
instructions, carry out detailed instructions, and interact appropriately with the public, and (3)
capable of understanding and remembering one- to two-step instructions, carrying out and
maintaining the concentration and persistence necessary to perform one- to two-step tasks,
engaging in appropriate interactions with co-workers and supervisors, and occasional interaction
with the public. (Tr. 117-18.)

July 27, 2010). Under the DSM-IV classification system, Axis I concerns clinical disorders, Axis
II concerns personality disorders and mental retardation, Axis III concerns general medical
conditions, Axis IV concerns psychosocial and environmental factors, and Axis V concerns the
GAF scale. Id.; see also Burton v. Comm’r Soc. Sec., No. 15-530, 2016 WL 9350081, at *4 n.5
(S.D. Ohio Aug. 25, 2016) (noting that the GAF scale “is no longer used in the current version”
of the DSM).
5

A GAF of forty-one to fifty indicates “serious symptoms or any serious impairment.”
Bland v. Astrue, 432 F. App’x 719, 721 n.1 (10th Cir. 2011) (citation, quotation marks, and
brackets omitted).
PAGE 6 – OPINION AND ORDER

Also on March 26, 2012, Dr. Kennemer completed a psychiatric review technique
assessment, agreeing with Dr. Hennings’ finding that Workman does not satisfy listings 12.06
and 12.10. (Tr. 115-16.)
In a letter dated July 8, 2013, Jason Wilkey (“Wilkey”), an employment support specialist
at Portland Habilitation Center, Inc., indicated that his company’s “mission is to train and
employ persons with severe disabilities,” that an initial review of Workman’s “disability status”
had been completed, and that Workman was “being placed on the primary disability wait list for
training” because an initial review of her records suggested that she was “unable to engage in
normal, competitive employment over an extended period of time.” (Tr. 486.) Between July 15,
2013 and August 20, 2013, Workman participated in a janitorial training program through
Portland Habilitation Center, Inc., and was paid “by Oregon state minimum wage standards.”
(Tr. 478-85.) Workman was terminated from the training program for excessive absenteeism.
(Tr. 478.)
On July 16, 2014, Workman appeared and testified at a hearing before an Administrative
Law Judge (“ALJ”).6 (Tr. 37-75.) Workman testified that she rides the bus as her primary mode
of transportation and does “[n]ot usually” have any problems, but has “gotten lost a couple of
times even with the directions,” she took college level computer classes in 2012, but lost her
financial aid because she “failed too many classes,” she participates in church activities, she got
married in May 2012 and has two young children (at the time, one was nineteen months old and
the other was three months old), her husband quit his job in May 2014 because she “was
struggling too much” with childcare, and because he discovered that his employer was involved
6

Workman initially appeared to testify at a hearing on March 10, 2014, but her attorney
asked the ALJ to postpone the hearing because Workman’s child care arrangements fell through
and the attorney had “concerns about proceeding when [Workman was] watching the child.” (Tr.
79-84.)
PAGE 7 – OPINION AND ORDER

in “marijuana activities,” and the State of Oregon conducted a parental fitness evaluation and
found that her children “were safe in [her] care with [her] husband working [twelve] hours a
day[.]” (Tr. 41-47, 55.) Workman also agreed that caring for her two children while her husband
worked was equivalent to a “full-time job,” but she testified that she does not believe she can
sustain full-time employment because she will “be in the middle of doing something” and she
“won’t know what [she is] doing . . . and [will] basically have to stop until [she] basically can
recover,” and because she worries about her “seizures,” which had recently resulted in a rib
injury. (Tr. 49.) Workman further testified that she “had a speech therapist” in high school and
participated in an Individualized Educational Program “for kids that needed extra help,” she
received “a regular high school diploma,” she posts on Facebook “once in a while,” and she
enjoys drawing, going on walks with her husband, playing on the computer, and writing down
prayers. (Tr. 51-56.)
The ALJ posed hypothetical questions to a Vocational Expert (“VE”) who testified at
Workman’s hearing. First, the ALJ asked the VE to assume that a hypothetical worker of
Workman’s age, education, and work experience could perform work “at all exertional levels”
that involve understanding, remembering, and carrying out “unskilled, routine, and repetitive
work,” “no more than occasional contact with supervisors,” and working “in proximity to coworkers,” but does not involve “a requirement for talking,” providing “direct service to the
general public,” or working in “a team or cooperative effort” with co-workers. (Tr. 68-69.) The
VE stated that the hypothetical worker could be employed as a laundry laborer, fish cleaner, and
garment folder.
Responding to the ALJ’s second hypothetical, the VE confirmed that the hypothetical
worker could be employed in the jobs above, even if she could not be exposed to unprotected

PAGE 8 – OPINION AND ORDER

heights or hazards. Responding to the ALJ’s follow-up questions, the VE testified that employers
usually “tolerate somewhere between six and ten absences per year” (i.e., “less than one per
month”), and an employee would be fired for being off task more than fifteen percent of the day.
(Tr. 70.)
Workman’s attorney also posed questions to the VE who testified at Workman’s hearing.
In response to those questions, the VE confirmed that he would be cautious about placing an
individual who suffers from seizures in the fish cleaner position because it involves working with
sharp tools. The VE also testified that the hypothetical worker (1) would still need to
communicate verbally with her supervisors at times, even if the job in question did not include a
talking requirement, (2) would be terminated if she needed additional breaks outside of the three
provided, was ten minutes late to work “week after week,” performed at a pace that was ten
percent slower than expected and failed to remedy the problem, or “was only able to sustain
activities at a pace that was [fifteen percent] off task,” and (3) “might” be terminated if she
“could not manage social interactions” or “lacked the ability to respond appropriately to
supervision” fifteen percent of the time, although it “would depend on the behavior and other
factors.” (Tr. 70-73.)
On August 6, 2014, Workman’s attorney referred her to Dr. Scott Alvord (“Dr. Alvord”)
for a psychological evaluation. (Tr. 516-23.) As part of his evaluation, Dr. Alvord interviewed
Workman and her husband, reviewed “limited historical records,” and administered, inter alia,
the Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”). (Tr. 522.) On WAIS-IV,
Workman obtained a full-scale IQ score of seventy-seven, a verbal comprehension score of
seventy-nine, a perceptual reasoning score of seventy-eight, a working memory score of seventyseven, and a processing speed score of seventy-seven. Workman’s scores on the WAIS-IV, when

PAGE 9 – OPINION AND ORDER

compared with Workman’s “significantly higher” scores on the WISC-IV administered in 2008,
led Dr. Alvord to (1) “suspect” there had been a “dramatic” decline in Workman’s “overall
intelligence, as well as memory,” thus “highlighting the probability of [a] cognitive disorder
presumably associated with a history of seizures,” and (2) conclude that “it is likely [Workman]
also has historically met the diagnostic criteria for a learning disorder [not otherwise specified].”
(Tr. 517, 523.)
In his evaluation report, Dr. Alvord also noted that (1) Workman “was not judged to be
an overly reliable historian,” (2) Workman’s memory impairment is “secondary to a cognitive
disorder related to a premorbid developmental disorder exacerbated by history of a seizure
disorder,” (3) Workman had what Dr. Alvord perceived to be two absence seizures during their
encounter,7 (4) Workman “asked to use the bathroom to get a drink of water” three times during
the evaluation and “[o]n all three occasions she was unable to find her way back to [Dr.
Alvord’s] office despite the fact that the bathroom was across the hall and one door down,” and
on one occasion Dr. Alvord was “forced to find her waiting in the waiting room,” (5) “[i]t is
unclear why [Workman] is not being treated with seizure medications,” (6) Workman
complained of anxiety, depression, abuse by her grandmother, and of being robbed of $2,000, (7)
Workman “presented as flushed and perspiring with a quavering voice and psychomotor
hyperactivity/physically manifested anxiety,” (8) Workman attends to her activities of daily
living “independently, but her husband said that he often has to remind her to shower or change
7

“An absence seizure is ‘the seizure seen in absence epilepsy, consisting of a sudden
momentary break in consciousness of thought or activity, often accompanied by automatisms or
clonic movements, especially of the eyelids.’” Ames v. Sec’y Health & Human Servs., No. 041706, 2005 WL 6120733, at *2 n.12 (Fed. Cl. Oct. 18, 2005) (citation omitted); see also N.H. ex
rel. Eure v. Colvin, No. 2:12–cv–70, 2013 WL 6410378, at *1 (E.D.N.C. Dec. 9, 2013) (“An
absence seizure is characterized by impaired awareness and involves a brief and sudden lapse in
consciousness.”).
PAGE 10 – OPINION AND ORDER

clothing,” (9) “[v]alidity issues were not suspected” and Workman’s test results “are judged to
slightly underrepresent her neurocognitive functioning secondary to anxiety/minimal lack of
continuity due to seizure symptoms and head pain,” and (10) anxiety “likely impacted
[Workman’s] performance on testing” during the evaluation, which “could be extrapolated to
suggest that her performance in any stressful situation will be significantly impacted.” (Tr. 51723.)
Based on the foregoing, Dr. Alvord’s diagnoses were posttraumatic stress disorder,
pervasive developmental disorder not otherwise specified, rule out a learning disorder not
otherwise specified, cognitive disorder not otherwise specified (Axis I), borderline intellectual
functioning (Axis II), seizure disorder “deferred to medical” (Axis III), psychosocial stressors
(e.g., limited social interactions, financial strain, occupation limitations, history of assault,
history of childhood abuse) (Axis IV), and a GAF score of forty to forty-five (Axis IV).8 (Tr.
523.)
Also on August 6, 2014, Dr. Alvord filled out a Mental Residual Functional Capacity
Assessment at the request of Workman’s counsel. (Tr. 525-28.) In the assessment, Dr. Alvord
opined that Workman suffers from a “Category IV” level of impairment (i.e., precludes
performance for fifteen percent or more of a seven-and-a-half hour workday) in her ability to
remember locations and work-like procedures, understand and remember detailed instructions,
carry out detailed instructions, maintain attention and concentration for extended periods,
perform activities within a schedule, maintain regular attendance, and be punctual within
8

“A GAF of forty indicates some impairment in reality testing or communication, or
major impairment in several areas such as work or school, family relations, judgment, thinking,
or mood.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 n.3 (9th Cir. 2005) (citation omitted). A
GAF of forty-one to fifty indicates serious symptoms or a serious impairment. Bland, 432 F.
App’x at 721 n.1.
PAGE 11 – OPINION AND ORDER

customary tolerances, sustain an ordinary routine without special supervision, work in
coordination with or proximity to others without being distracted by them, complete a normal
workday and workweek without interruptions from psychologically based symptoms and
perform at a consistent pace without an unreasonable number and length of rest periods, interact
appropriately with the general public, accept instructions and respond appropriately to criticism
from supervisors, get along with co-workers or peers without distracting them or exhibiting
behavioral extremes, be aware of normal hazards and take appropriate precautions, travel in
unfamiliar places or use public transportation, and set realistic goals and make plans
independently. Dr. Alvord also opined “to a reasonable degree of medical certainty” that
Workman will be “unable to perform independently, appropriately, effectively and on a sustained
basis” sixty-five percent of the time. (Tr. 528.)
On October 21, 2014, Workman visited Dr. Andrew Rose-Innes (“Dr. Rose-Innes”), a
neurologist, regarding her “seizure-like episodes.” (Tr. 546.) Workman described these episodes
as “‘spacing out,’ where she will not recall what she was doing immediately before,” and her
husband recalled instances of Workman “leaving the stove on and walking off while preparing
food; walking into traffic, shaking episodes.” (Tr. 546.) Dr. Rose-Innes noted that Workman’s
husband had “never seen a convulsion” over the course of three years, Workman’s “history was
only moderately reliable,” Workman would intermittently “gaze off to one side or the other as if
she was daydreaming,” which “potentially might represent absence seizures, but [is] not
characteristic,” and the remainder of the “neurological examination was within normal limits.”
(Tr. 546-48.)
On October 30, 2014, Workman underwent a magnetic resonance imaging (“MRI”) of
her brain after complaining of “seizure-like episodes.” (Tr. 540, 546.) Workman’s brain MRI

PAGE 12 – OPINION AND ORDER

produced a “[n]ormal study” and “[n]o etiology for [a] seizure disorder [was] identified.” (Tr.
540.) Shortly before this time, Workman visited her then-primary care physician, Dr. Joseph
Resendiz (“Dr. Resendiz”), and “want[ed] to discuss” treating her seizures with medical
cannabis. (Tr. 546, 563.) Dr. Resendiz signed Workman’s medical marijuana application the next
week. (Tr. 562.)
In a written decision issued on November 14, 2014, the ALJ applied the five-step process
set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), and found that Workman was not
disabled. See infra. The Social Security Administration Appeals Council denied Workman’s
petition for review, making the ALJ’s decision the Commissioner’s final decision. Workman
timely appealed.
THE FIVE-STEP SEQUENTIAL ANALYSIS
I.

LEGAL STANDARD
A claimant is considered disabled if he or 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). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are as
follows:
(1) Is the claimant presently working in a substantially gainful
activity? (2) Is the claimant’s impairment severe? (3) Does the
impairment meet or equal [one of the listed impairments]? (4) Is
the claimant able to perform any work that he or she has done in
the past? and (5) Are there significant numbers of jobs in the
national economy that the claimant can perform?

PAGE 13 – OPINION AND ORDER

Id. at 724-25. The claimant bears the burden of proof for the first four steps in the process.
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the
burden at any of the first four steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S.
137, 140-41 (1987).
The Commissioner bears the burden of proof at step five of the process, where the
Commissioner must show the claimant can perform other work that exists in significant numbers
in the national economy, “taking into consideration the claimant’s residual functional capacity,
age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If
the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at
954 (citations omitted).
II.

THE ALJ’S DECISION
The ALJ applied the five-step sequential evaluation process to determine if Workman is

disabled. 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. At step one, the ALJ determined that
Workman had not been engaged in substantial gainful activity since September 17, 1992, the
alleged disability onset date. (Tr. 21.) At step two, the ALJ found that Workman had three severe
impairments: (1) Asperger’s Syndrome; (2) affective disorder; and (3) anxiety disorder. (Tr. 21.)
At step three, the ALJ found that Workman did not have an impairment that meets or equals a
listed impairment. (Tr. 22.) The ALJ then determined that Workman had the residual functional
capacity (“RFC”) to “perform a full range of work at all exertional levels,” subject to the
following restrictions: (1) there cannot be “a requirement for talking,” (2) the jobs cannot involve
working at unprotected heights or exposure to hazards, (3) the jobs must be consistent with an
ability to “understand, remember, and carry out unskilled, routine, and repetitive work . . . that
requires no more than occasional contact with supervisors,” (4) the jobs can involve working “in
proximity to co-workers but not in a team or cooperative environment,” and (5) the jobs cannot
PAGE 14 – OPINION AND ORDER

involve “work in which direct service to the general public” is required. (Tr. 23.) At step four,
the ALJ concluded that Workman has no past relevant work. (Tr. 27.) At step five, the ALJ
concluded that Workman is not disabled because there are jobs that exist in significant numbers
in the economy that she can perform, including work as a laundry laborer and garment folder.
(Tr. 28.)
STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner’s findings
are “‘not supported by substantial evidence or based on legal error.’” Bray v. Comm’r Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880,
882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla [of
evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Id. (quoting Andrews v. Shalala, 53 F.3d 1035,
1039 (9th Cir. 1995)).
The district court “cannot affirm the Commissioner’s decision ‘simply by isolating a
specific quantum of supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.
2001) (quoting Tackett, 180 F.3d at 1097). Instead, the district court must consider the entire
record, weighing the evidence that both supports and detracts from the Commissioner’s
conclusions. Id. If the evidence as a whole can support more than one rational interpretation, the
ALJ’s decision must be upheld; the district court may not substitute its judgment for the
judgment of the ALJ. Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152
(9th Cir. 2007)).
DISCUSSION
In this appeal, Workman argues that the ALJ erred by: (1) failing to provide clear and
convincing reasons for rejecting her symptom testimony; (2) failing to provide specific and
PAGE 15 – OPINION AND ORDER

legitimate reasons for discounting the opinions of her examining psychologists, Drs. Alvord and
Kirkendall; and (3) failing to provide germane reasons for discounting the lay witness testimony
provided by Workman’s grandmother, Nancy Peete (“Peete”). (Pl.’s Opening Br. at 1-2, 4.) As
explained below, the Court concludes that the Commissioner’s decision is free of harmful legal
error and supported by substantial evidence. Accordingly, the Court affirms the Commissioner’s
decision.
I.

CREDIBILITY DETERMINATION
A.

Applicable Law

Absent an express finding of malingering, an ALJ must provide clear and convincing
reasons for rejecting a claimant’s testimony:
Without affirmative evidence showing that the claimant is
malingering, the [ALJ]’s reasons for rejecting the claimant’s
testimony must be clear and convincing. If an ALJ finds that a
claimant’s testimony relating to the intensity of his pain and other
limitations is unreliable, the ALJ must make a credibility
determination citing the reasons why the testimony is
unpersuasive. The ALJ must specifically identify what testimony is
credible and what testimony undermines the claimant’s
[subjective] complaints.
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 597 (9th Cir. 1999) (citations omitted).
Clear and convincing reasons for rejecting a claimant’s subjective symptom testimony “include
conflicting medical evidence, effective medical treatment, medical noncompliance,
inconsistencies in the claimant’s testimony or between her testimony and her conduct, daily
activities inconsistent with the alleged symptoms, and testimony from physicians and third
parties about the nature, severity and effect of the symptoms complained of.” Bowers v. Astrue,
No. 6:11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012); see also Molina v. Astrue,
674 F.3d 1104, 1112 (9th Cir. 2012) (“[T]he ALJ is not ‘required to believe every allegation of
disabling pain, or else disability benefits would be available for the asking, a result plainly
PAGE 16 – OPINION AND ORDER

contrary to 42 U.S.C. § 423(d)(5)(A).’” (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.
1989))).
B.

Application of Law to Fact

There is no affirmative evidence that Workman is malingering and, therefore, the ALJ
was required to provide clear and convincing reasons for discrediting Workman’s testimony.
Upon review, the Court concludes that the ALJ satisfied the clear and convincing reasons
standard.
First, the ALJ discounted Workman’s symptom testimony because it is inconsistent with
her daily activities. (See Tr. 24-25, discounting Workman’s symptom testimony, and noting that
“until [two] months prior to the hearing, the claimant was the sole caregiver for two small
children while her husband worked [twelve]-hour days,” and that Workman reported that the
State of Oregon “determined that the children were safe in her care while her husband was
working long hours,” Tr. 27, noting that Workman’s “activities as reported in the record” support
the ALJ’s RFC determination). “Engaging in daily activities that are incompatible with the
severity of symptoms alleged can support an adverse credibility determination.” Martin v.
Colvin, No. 3:14–cv–01603–SB, 2016 WL 890106, at *8 (D. Or. Feb. 9, 2016) (citation
omitted).
Substantial evidence supports the ALJ’s finding that Workman engaged in daily activities
that are incompatible with her symptom testimony. (Compare Tr. 49-51, citing moments of
forgetfulness or apparent absence seizures, along with potential seizure-related falls, as
Workman’s primary barriers to employment, Tr. 391, appearing for an evaluation and
complaining of “anxiety, especially social anxiety as a long-standing problem,” Tr. 519-20,
emphasizing anxiety attacks during an evaluation, reporting that such attacks occur “a couple of
times a week” and are triggered “by social settings including grocery stores,” reporting signs of
PAGE 17 – OPINION AND ORDER

depression, such as a lack of energy and motivation, and describing social “isolation with the
exception of her husband and children,” with Tr. 46-49, testifying that Workman’s past childcare
activities equated to full-time work, and she was able to feed, clothe, and change her children
while her husband worked, Tr. 310-17, testifying that Workman is able to go outside “[a]bout
everyday walking around town with [a] group doing things,” shop in stores for food, hygiene
products, clothes, etc., “[w]hen [she] needs to and until [she is] done,” engage in social activities
on a daily basis, including spending “[a] lot of time with others in person” and interacting on the
computer, prepare meals, including “complete meals with several courses” within the “normal
time,” perform household chores “about every day and [within the] normal amount of time,”
count change, handle a savings account, read, play the flute, and participate in church activities,
Tr. 318-25, indicating that Workman “loves to shop” in stores and online, is “very independent”
and gets around “as desired,” reads “very often” and “very well,” and “loves to be around
people,” Tr. 391, reporting that Workman’s “typical day” consists of helping her then-fiancé
with his homework before he “leaves for [his] college” classes, running “errands around town”
multiple times, walking “everywhere,” eating, visiting with people, watching television, listening
to music, and using the computer, Tr. 396-98, noting that Workman reported that she is “very
active with working out” and fundraising for her church, she is “a person who can do things on
[her] own, but sometimes [may] need a little help,” she is able to manage her depression with
exercise, school, and church, and “there seems to be no further need for mental health
treatment”).
Workman argues that the ALJ erred in concluding that her daily activities were
incompatible with her symptom testimony. In support of her argument, Workman notes that she
testified that “her husband had to quit his job after just two to three months because she was

PAGE 18 – OPINION AND ORDER

unable to provide adequate care to their children without help,” and claims that “her testimony
evidences essentially an unsuccessful work attempt.” (Pl.’s Opening Br. at 15.) The Court is not
persuaded by this argument. Although Workman claims that her husband quit his job because
she was unable to provide adequate care for their children, she also testified that (1) the State of
Oregon conducted a parental fitness evaluation while her husband was working and determined
that she was fit and able to care for their children, (2) her husband left his job due, in part, to the
fact that his employer was engaged in illegal activities, (3) she was able to feed, clothe, and
change her children while her husband was working, although it was “hard” and she would at
times need to “basically wait for [a] moment [where she was] unable to think to pass,” and (4)
she engaged in a number of other activities (described and cited above) that are incompatible
with her testimony. (Tr. 44-59.) Accordingly, it was appropriate for the ALJ to conclude that
Workman’s activities are incompatible with the severity of symptoms alleged.9 See Smith v.
Comm’r Soc. Sec. Admin., 611 F. App’x 897, 900 (9th Cir. 2015) (affirming the ALJ’s adverse
credibility determination, and noting that the ALJ found the claimant’s testimony was
contradicted by, inter alia, “her own description of helping with” the “care of children” and
household chores); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (affirming the ALJ’s
adverse credibility determination, and noting that the claimant’s claim of disability was
undermined by testimony about her daily activities, such as “attending to the needs of her two
9

Workman’s reliance on Trevizo v. Berryhill, ---- F.3d ---- , 2017 WL 4053751, at *8
(9th Cir. Sept. 14, 2017), is unavailing. In Trevizo, the record provided “no details as to what [the
claimant’s] regular childcare activities involved,” and thus the Ninth Circuit held that the ALJ
improperly relied on those activities in discounting a treating doctor’s opinion. Id. In this case,
the record provides details as to what Workman’s childcare activities involved. (See Tr. 44-47,
testifying that Workman was the only individual who cared for her two children while her
husband was working twelve hours per day, that Workman feeds, clothes, and changes the
children, and that the State of Oregon determined that Workman was fit and able to care for the
children).
PAGE 19 – OPINION AND ORDER

young children,” cooking, and shopping); see also Molina, 674 F.3d at 1113 (“Even where [a
claimant’s daily] 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.”).
Second, the ALJ discounted Workman’s testimony based on a lack of corroborating
medical evidence. See Nikitchuk v. Astrue, 240 F. App’x 740, 742 (9th Cir. 2007) (explaining
that it is appropriate for an ALJ to consider a “lack of medical evidence corroborating” a
claimant’s “testimony as one factor in [a] credibility determination”). For example, the ALJ
noted that “[t]he medical evidence is inconsistent with the claimant’s allegations of disability.”
(Tr. 24.) In support of this assertion, the ALJ noted that Workman, who alleges disability based
primarily on mental impairments, had “benign mental status examinations,” obtained “a fullscale IQ of 102,” and “was described [on examination] as needing some re-direction but able to
sustain attention when needed.” (Tr. 24.) The ALJ also cited the lack of corroborating evidence
to support Workman’s claim of a disabling seizure disorder.10 (See Tr. 22, finding a seizure
disorder to be non-severe, and noting that a neurology department felt that Workman’s issues
“were likely not [related] to seizures,” “no etiology for a seizure disorder [was] revealed”
following a brain MRI, and Dr. Rose-Innes “did not embrace a diagnosis of a seizure disorder”
and suggested that Workman’s behavior was not “characteristic of absence seizures”).

10

The ALJ’s adverse credibility determination did not explicitly rely on the lack of
corroborating evidence regarding Workman’s alleged seizure disorder, but the ALJ did make
such findings at step two of the sequential process (which is not challenged on appeal), and it is
appropriate for the Court to consider additional support for a ground on which the ALJ relied.
See Fenton v. Colvin, No. 6:14-00350-SI, 2015 WL 3464072, at *1 (D. Or. June 1, 2015) (“The
Court is not permitted to affirm the Commissioner on a ground upon which the Commissioner
did not rely, but the Court is permitted to consider additional support for a ground on which the
ALJ relied.”).
PAGE 20 – OPINION AND ORDER

Substantial evidence supports the ALJ’s findings. (Compare Tr. 49-51, citing seizurerelated issues as Workman’s primary barriers to employment, Tr. 517, 523, “defer[ing] to
medical” with respect to Workman’s alleged seizure disorder, but nevertheless hypothesizing
that Workman’s markedly lower test scores “suggest[ed] that her intellectual functioning had
declined dramatically, highlighting the probability of [a] cognitive disorder presumably
associated with a history of seizures,” Tr. 546, reporting that Workman’s seizures cause her to
forget “what she has been doing immediately before,” with Tr. 299, indicating that Workman
obtained a full-scale IQ score of 102, Tr. 326, indicating that Workman can “talk, respond
appropriately, [and] remember what happens during a seizure,” Tr. 372, reporting that “in the
scheme of [Workman’s] disabilities as a whole, her seizures were the least of all of the problems
she spent her life struggling with,” Tr. 376-77, noting that there was “some past consideration of
a seizure disorder” that was “followed by neurology,” that an electroencephalogram “showed
some independent spike foci in the right central and left temporal regions,” that Workman’s
neurologist “was not convinced that [she] had seizures” and felt that her issues were “more likely
related to her behavioral issues,” and that Workman’s grandfather reported that she did not have
“any concerns of seizures” after being tapered off “anticonvulsant[]” seizure medication, Tr.
390-91, noting that a mental status examination revealed “average intelligence,” “some ability to
think[] abstractly,” and “generally intact” short-term memory and immediate recall, and an
ability to provide “reasonable answers to [two] hypothetical social problems,” “complete serial
3s and spell the word ‘WORLD’ both forwards and backwards,” “maintain attention and/or
concentration for at least short periods of time,” and remember a list of three unrelated words
after a five-minute delay, Tr. 402-04, noting that Workman’s behavior, thought content, memory,
perception, insight, judgment, and intellectual functioning were within normal limits on a mental

PAGE 21 – OPINION AND ORDER

status examination, Tr. 546-48, noting that Workman’s husband “has never seen a convulsion”
during their three-year relationship, Workman’s presentation was “not characteristic” of absence
seizures, and the remainder of her “neurological examination was within normal limits,” Tr. 540,
noting that a brain MRI produced a “[n]ormal study” and “[n]o etiology for [a] seizure disorder
[was] identified”).
Based on the foregoing, the Court declines to second-guess the ALJ’s credibility
determination because it is reasonable and supported by substantial evidence in the record. See
Rollins, 261 F.3d at 856 (“[T]he ALJ’s interpretation of [the claimant’s] testimony may not be
the only reasonable one. But it is still a reasonable interpretation and is supported by substantial
evidence; thus, it is not our role to second-guess it.”); see also Dowell v. Berryhill, No. 16-614SI, 2017 WL 1217158, at *5 (D. Or. Apr. 3, 2017) (noting that the court may uphold an ALJ’s
credibility determination even if some of the reasons the ALJ provided were not legally
sufficient).
II.

MEDICAL OPINION EVIDENCE
A.

Applicable Law

“There are three types of medical opinions in social security cases: those from treating
physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc.
Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citing Lester v. Chater, 81 F.3d 821, 830 (9th
Cir. 1995)). In the event “a treating or examining physician’s opinion is contradicted by another
doctor, the ‘[ALJ] must determine credibility and resolve the conflict.’” Id. (citation omitted).
“An ALJ may only reject a treating physician’s contradicted opinions by providing ‘specific and
legitimate reasons that are supported by substantial evidence.’” Ghanim v. Colvin, 763 F.3d
1154, 1161 (9th Cir. 2014) (quoting Ryan v. Comm’r Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.
2008)).
PAGE 22 – OPINION AND ORDER

“An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.’” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Merely stating conclusions is insufficient:
“The ALJ must do more than state conclusions. He must set forth his own interpretations and
explain why they, rather than the doctors’, are correct.” Id. “[A]n ALJ errs when he rejects a
medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting
without explanation that another medical opinion is more persuasive, or criticizing it with
boilerplate language that fails to offer a substantive basis for his conclusion.” Id. at 1012-13
(citation omitted).
B.

Application of Law to Fact

Workman argues that the ALJ failed to provide specific and legitimate reasons for
discounting the opinions of her examining psychologists, Drs. Alvord and Kirkendall. (See Pl.’s
Reply at 2, acknowledging that the specific and legitimate reasons standard applies). The Court
disagrees.
1.

Dr. Alvord

First, the ALJ discounted Dr. Alvord’s opinion evidence on the ground that it was
inconsistent with Workman’s reported activities. (See Tr. 26, assigning “little weight” to Dr.
Alvord’s opinion evidence, and noting that it was “inconsistent with the claimant’s reported
activities”). A conflict between a doctor’s opinion and a claimant’s activities is a specific and
legitimate reason for discounting the doctor’s opinion. Gontes v. Astrue, 913 F. Supp. 2d 913,
924 (C.D. Cal. 2012). It was reasonable for the ALJ to conclude that Dr. Alvord’s opinion
conflicted with Workman’s activities. Dr. Alvord opined that Workman is significantly impaired
in her ability to, among other things: (1) use public transportation, (2) be aware of normal
PAGE 23 – OPINION AND ORDER

hazards and take appropriate precautions, sustain an ordinary routine without special supervision,
and maintain attention and concentration for the “approximately two hours between starting
work and the first break,” (3) adhere to basic standards of neatness and cleanliness, (4) set
realistic goals and make plans independently of others, (5) interact appropriately with the general
public, and (6) ask simple questions or request assistance. (Tr. 526-27.) The record, however,
reveals that Workman (1) at times needs directions, but does “[n]ot usually” have “any problem
taking the bus,” rode the bus when she attended Umpqua Community College, and reported that
“she does not have a car and must rely on public transportation or walking” (Tr. 41, 56, 411), (2)
was able to care for her children by herself and keep them “safe” while her husband was working
twelve-hour days, which was confirmed by a parental fitness evaluation, and “knew to call 911
in an emergency” (Tr. 44-47, 391), (3) “showers every day” and “never needs reminded,”
“brushes her teeth twice a day,” and presented as “neatly and casually dressed” and within
normal limits (i.e., not “[d]isheveled”) during medical evaluations (Tr. 390-91, 402), (4) made
“plans to obtain a student loan and attend classes” at Umpqua Community College and “get an
apartment with [her student loan] funds,” and worked “hard to complete all the necessary
paperwork to become enrolled in college and line up financial aid” (Tr. 390, 407), (5) “gets
along with most everyone,” is able to shop in stores “[w]hen [she] need[s] to and until [she is]
done,” and spends “[a]bout every day walking around town with [a] group doing things” (Tr.
313-14, 322), and (6) seeks childcare advice from a pediatric nurse and her grandmother and
aunt. (Tr. 58.)
Dr. Alvord also opined that Workman suffers from social anxiety, and that her anxiety
impacts her performance on tests and ability to maintain concentration and focus. (See Tr. 51723, noting that Workman emphasized anxiety attacks during Dr. Alvord’s evaluation, reported

PAGE 24 – OPINION AND ORDER

that such attacks occur “a couple of times a week” and are triggered “by social settings including
grocery stores,” and described social “isolation with the exception of her husband and children,”
and opining that Workman’s anxiety impacts her performance on tests and ability to concentrate
and focus). As the ALJ observed, Dr. Alvord’s opinions are inconsistent with Workman’s
activities. (See Tr. 310-17, testifying that Workman is able to go outside “[a]bout everyday
walking around town with [a] group doing things,” shop in stores for a variety of products
“[w]hen [she] needs to and until [she is] done,” and engage in social activities on a daily basis,
including spending “[a] lot of time with others in person,” Tr. 318-25, indicating that Workman
“loves to shop” in stores, is “very independent,” and gets around “as desired,” Tr. 391, reporting
that Workman’s “typical day” consists of, inter alia, running “errands around town” multiple
times, Tr. 396-98, reporting that Workman “had been very active with working out” and church
fundraising).
Second, the ALJ discounted Dr. Alvord’s opinion because it conflicted with objective
medical evidence. See Taddeo v. Colvin, No. 13-541, 2014 WL 4961151, at *5 (D. Nev. Oct. 3,
2014) (“The ALJ’s assignment of little weight to Dr. Plon is supported by specific and legitimate
reasons based on the conflict with other objective medical evidence and opinion evidence in the
record.”). For example, the ALJ stated: “Dr. Alvord hypothesized that [Workman’s] seizure
disorder may have contributed to her stark decline [on testing], [but] the fact that a neurological
consultation in November 2014 revealed no clear signs of any seizure disorder undermines this
hypothesis[.]” (Tr. 25.) The ALJ therefore assigned “little weight” to Dr. Alvord’s opinion
because it was “inconsistent with subsequent neurological consultations that showed no seizure
disorder.” (Tr. 26.) Substantial evidence supports the ALJ’s finding that Dr. Alvord’s opinion
rested on an assumption that conflicted with objective medical evidence. (Compare Tr. 517, 523,

PAGE 25 – OPINION AND ORDER

“defer[ing] to medical” regarding a seizure disorder, but nevertheless hypothesizing that
Workman’s lower test scores “suggest[ed] that her intellectual functioning had declined
dramatically, highlighting the probability of [a] cognitive disorder presumably associated with a
history of seizures,” with Tr. 376-77, noting that there was “some past consideration of a seizure
disorder” that was “followed by neurology,” that an electroencephalogram “showed some
independent spike foci in the right central and left temporal regions,” and that Workman’s
neurologist “was not convinced that [she] had seizures” and felt her issues were “more likely
related to her behavioral issues,” Tr. 540, noting that a brain MRI produced a “[n]ormal study”
and “[n]o etiology for [a] seizure disorder [was] identified,” Tr. 546-48, noting that Workman’s
presentation was “not characteristic” of absence seizures, and the remainder of her “neurological
examination was within normal limits”).
Workman challenges the ALJ’s above finding, noting that “Dr. Alvord in fact opined that
[her] performance was significantly impacted by anxiety, which he observed to be physically
manifested during testing.” (Pl.’s Opening Br. at 10.) It is true that, when Workman was being
evaluated by Dr. Alvord, “she presented as flushed and perspiring with a quavering voice and
psychomotor hyperactivity/physically manifested by anxiety.” (Tr. 519.) It is also true, however,
that Dr. Alvord opined that Workman’s “seizures and underlying anxiety/panic are interrelated,”
and that Workman’s anxiousness is “exacerbated by fears of having seizures in public.” (Tr.
519.) Given the fact that Workman’s alleged seizure disorder and anxiety are “interrelated,” and
the fact that Dr. Alvord deferred to the medical evidence regarding a seizure disorder, the ALJ
appropriately discounted Dr. Alvord’s opinion because it conflicted with objective medical
evidence.

PAGE 26 – OPINION AND ORDER

Third, the ALJ rejected Dr. Alvord’s opinion evidence in favor of the state agency
medical consultants’ conflicting opinions. (See Tr. 26, assigning “significant weight” to the state
agency medical consultants’ conflicting opinions because they were “consistent with the record,”
and then assigning “little weight” to Dr. Alvord’s opinion because it is inconsistent with record
evidence). The state agency doctors’ conflicting opinions regarding Workman’s functional
limitations, coupled with the other reasons described above, constitutes substantial evidence
necessary to affirm the ALJ’s rejection of Dr. Alvord’s opinion evidence. See, e.g., Morford v.
Colvin, No. 6:15–cv–01216–SB, 2016 WL 3092109, at *8 (D. Or. June 1, 2016) (stating that a
non-examining doctor’s opinion, coupled with other reasons provided by the ALJ, constituted
“the substantial evidence necessary to affirm the ALJ’s rejection” of another doctor’s opinion
evidence).
For these reasons, the Court finds that the ALJ’s rejection of Dr. Alvord’s opinion
evidence was supported by substantial evidence and, therefore, should not be disturbed on
appeal.11
///
11

When Dr. Kirkendall examined Workman, she was “able to complete serials 3s.” (Tr.
390.) Serial 3s assess an individual’s ability to maintain concentration and attention by having
them count “backwards from 100 to 50 by 3s.” Hudson v. Colvin, No. 12-00044, 2013 WL
1500199, at *10 (N.D.N.Y. Mar. 21, 2013). When Dr. Alvord later examined Workman, she
“refused” to complete “serial 3’s stating ‘I can’t do that.’” (Tr. 521; see also Tr. 450, describing
Workman’s test results, and noting that she can “add, subtract, multiply and divide with
regrouping, add, subtract, and multiply with fractions (and reduce to lowest terms), solve
algebraic equations, follow order of operations, and calculate with decimals and negative
numbers”). Such a discrepancy lends support to the ALJ’s observation that Workman’s
performance during Dr. Alvord’s psychological evaluation “was lacking for other reasons.” (Tr.
25; see also Tr. 390, “When asked [by Dr. Kirkendall] what the saying means ‘you can’t judge a
book by its cover’ she stated people assume things and shouldn’t,” cf. Tr. 521, “[W]hen [later]
asked [by Dr. Alvord] regarding [the saying] Don’t Judge a Book By It[s] Cover, she initially
stated ‘can you repeat the question.’ After it was repeated, she stated ‘don’t judge a book by it[s]
cover.’”).
PAGE 27 – OPINION AND ORDER

2.

Dr. Kirkendall

The ALJ also gave “specific and legitimate reasons supported by substantial evidence in
the evidence in record,” Reddick, 157 F.3d at 725, for assigning little weight to Dr. Kirkendall’s
opinion. First, the ALJ discounted Dr. Kirkendall’s opinion on the ground that it was inconsistent
with Workman’s activities. (See Tr. 26, stating that Dr. Kirkendall’s opinion is “not consistent
with the claimant’s demonstrated ability to care for her two young children while her husband
worked [twelve]-hour days”). A conflict between a doctor’s opinion and a claimant’s activities is
a specific and legitimate reason for discounting the doctor’s opinion. Gontes, 913 F. Supp. 2d at
924. Substantial evidence supports the ALJ’s finding. (Compare Tr. 392, opining that Workman
“appears to be suffering from some social anxiety and this combined with her Asperger’s
syndrome makes normal social interactions difficult for her,” and that Workman is “not able to
manage her own day-to-day affairs or effectively plan for [the] future because of her Asperger’s
Syndrome,” with Tr. 44-47, testifying that Workman was the only individual who cared for her
two young children while her husband was working twelve hours per day, that Workman feeds,
clothes, and changes the children, and that the State of Oregon conducted a parental fitness
evaluation and determined that Workman was fit and able to care for her children, Tr. 310-25,
indicating that Workman “gets along with most everyone,” is able to shop in stores “[w]hen [she]
need[s] to and until [she is] done,” spends “[a]bout every day walking around town with [a]
group doing things,” engages in social activities on a daily basis, including spending “[a] lot of
time with others in person,” “loves to shop” in stores, is “very independent,” and gets around “as
desired,” Tr. 390-91, 396-98, 407, reporting that Workman’s “typical day” consists of, inter alia,
running “errands around town” multiple times, that Workman has “been very active with
working out” and fundraising, and that Workman was able to make “plans to obtain a student
loan and attend classes” at Umpqua Community College and “get an apartment with [her loan]
PAGE 28 – OPINION AND ORDER

funds,” and worked “hard to complete all the necessary paperwork to become enrolled in college
and line up financial aid”).
Second, the ALJ discounted Dr. Kirkendall’s opinion on the ground that it was
“inconsistent with the treatment record,” noting that Workman “rapid[ly] progress[ed] through
treatment” at the Douglas County Mental Health Division. (Tr. 26.) An ALJ may discount a
doctor’s opinion when it is “inconsistent with other evidence in the record.” Burdon v. Colvin,
650 F. App’x 535, 537 (9th Cir. 2016) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th
Cir. 2001)). Workman argues that the ALJ erred in doing so here because she was only being
treated for depression at the Douglas County Mental Health Division and Dr. Kirkendall did not
diagnose a depressive disorder. The record indicates that during Dr. Kirkendall’s evaluation,
Workman endorsed past struggles with depression and Dr. Kirkendall opined that “community
mental health . . . services would be beneficial” to Workman. (Tr. 391-92.) The record also
indicates that Workman reported that ongoing mental health treatment “would [not] be much of a
use for her” because she was able to manage her depression through exercise, church activities,
and attending school, which prompted Nielsen to assign a GAF of sixty-one, agree that
Workman “does not appear to need services,” state that “there seems to be no further need for
mental health treatment,” and state that Workman “may need guidance in the future, [but] not
necessarily [m]ental [h]ealth therapy or treatment,” even though she was aware of Workman’s
other life stressors and history of Asperger’s Syndrome, ADD, and migraines. (Tr. 396-97.) In
light of the foregoing, it was appropriate to discount Dr. Kirkendall’s opinion on the ground that
it was inconsistent with Workman’s treatment performance.12

12

Workman correctly observes that one of the state agency medical consultants found
that Dr. Kirkendall’s opinion “is consistent with the medical evidence.” (Tr. 116.) That fact is of
little import because the ALJ is the fact-finder in disability proceedings, and substantial evidence
PAGE 29 – OPINION AND ORDER

Third, the ALJ rejected Dr. Kirkendall’s opinion in favor of the state agency medical
consultants’ less restrictive opinions. (See Tr. 26, assigning “significant weight” to the state
agency medical consultants’ conflicting opinions because they were “consistent with the record,”
and then assigning “little weight” to Dr. Kirkendall’s opinion because it is inconsistent with the
record). The state agency doctors’ less restrictive opinions, coupled with the other reasons
described above, constitutes substantial evidence necessary to affirm the ALJ’s rejection of Dr.
Kirkendall’s opinion evidence. See Morford, 2016 WL 3092109, at *8 (stating that a nonexamining doctor’s opinion, coupled with other reasons provided by the ALJ, constituted “the
substantial evidence necessary to affirm the ALJ’s rejection” of another doctor’s opinion
evidence).
In sum, the ALJ provided specific and legitimate reasons for rejecting Dr. Kirkendall’s
opinion and those reasons are supported by substantial evidence in the record.
III.

LAY WITNESS TESTIMONY
A.

Applicable Law

An ALJ must consider lay witness testimony concerning a claimant’s ability to work.
Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). The ALJ cannot disregard such testimony
without providing specific reasons that are germane to each witness. Stout v. Comm’r of Soc.
Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). “Inconsistency with medical evidence is one
such reason.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). “Germane reasons for
rejecting a lay witness’ testimony [also] include inconsistencies between that testimony and the
claimant’s presentation to treating physicians or the claimant’s activities, and the claimant’s
supports the findings the ALJ made here. See Latta v. Astrue, 482 F. App’x 261, 262-63 (9th Cir.
2012) (“As the fact-finder in disability hearings, the ALJ is responsible for resolving any
conflicts in the medical evidence on record.” (citing Thomas v. Barnhart, 278 F.3d 947, 956 (9th
Cir. 2002)).
PAGE 30 – OPINION AND ORDER

failure to participate in prescribed treatment.” Barber v. Astrue, No. 10–1432, 2012 WL 458076,
at *21 (E.D. Cal. Feb. 10, 2012). “[W]hen an ALJ provides clear and convincing reasons for
rejecting the credibility of a claimant’s own subjective complaints, and the lay-witness testimony
is similar to the claimant’s complaints, it [also] follows that the ALJ gives ‘germane reasons for
rejecting’ the lay testimony.” Williams v. Astrue, 493 F. App’x 866, 869 (9th Cir. 2012) (citation
omitted).
B.

Application of Law to Fact

Workman argues that the ALJ failed to provide germane reasons for rejecting Peete’s lay
witness testimony. (Pl.’s Opening Br. at 15-17.) The Commissioner argues that, even assuming
the ALJ erred in discounting Peete’s testimony, any error was harmless because Peete’s
testimony “mirrors” Workman’s, which the ALJ provided clear and convincing reasons to reject.
(Def.’s Br. at 15.) Workman argues that her testimony does not “mirror[]” Peete’s, noting only
that she reported being “‘pretty good’ at getting along with authority figures,” while Peete
reported that she “would have difficulty responding appropriately to supervision.” (Pl.’s Reply
Br. at 8.)
The question here is whether Peete’s testimony is “similar” to Workman’s complaints.
Williams, 493 F. App’x at 869. The Court concludes that it is. (Compare Tr. 318-25, reporting
that Workman’s daily activities consist of doing dishes and laundry, taking care of her own
personal hygiene, reading, and interacting with others on the computer, that Workman “loves to
shop” and “loves to be around people,” that Workman is able to prepare meals, get around “as
desired,” count change, handle a saving account, read “very well” and often, “get[] along with
most everyone,” and participate in church activities, and that Workman’s ability to pay attention
“[d]epends on her interest in” the subject matter, with Tr. 310-17, 391, reporting that Workman
has little to no difficulty tending to her personal hygiene, and is able to prepare meals, clean, do
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the laundry and dishes “about every day,” get around “[a]bout every day walking around town
with [a] group doing things,” shop in stores, count change, handle a savings account, read,
participate in church activities, and spend “[a] lot of time with others in person”). The ALJ
provided clear and convincing reasons for rejecting Workman’s testimony, Peete’s testimony
was similar to Workman’s testimony, and it therefore follows that the ALJ had germane reasons
to discount Peete’s testimony. Accordingly, the ALJ did not commit harmful error. See Hart v.
Astrue, 349 F. App’x 175, 177 (9th Cir. 2009) (observing that “the ALJ provided no reasons at
all for giving either witness’s testimony less than full weight,” but nevertheless holding that the
error was harmless because “the ALJ still had substantial evidence to support his finding that
[the claimant’s] impairments were not severe”); Perkins v. Berryhill, No. 16-6089, 2017 WL
1380408, at *4 (C.D. Cal. Apr. 17, 2017) (explaining that an ALJ’s decision can be affirmed
under the harmless error standard “even if the ALJ did not ‘clearly link’ rejection of the specific
lay testimony to the reasons expressed for rejecting the claimant’s similar testimony”) (citation
omitted).
CONCLUSION
For the reasons stated, the Court AFFIRMS the Commissioner’s decision because it is
free of harmful legal error and supported by substantial evidence.
IT IS SO ORDERED.
DATED this 23rd day of October, 2017.

STACIE F. BECKERMAN
United States Magistrate Judge

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