Duke v. Commissioner Social Security Administration

Filing 20

Opinion and Order - The ALJ provided several clear and convincing reasons, which are supported by substantial evidence, to discredit Duke's testimony regarding the severity of her symptoms. Therefore, the ALJ relied on the proper evidence in determining Duke's RFC, and the Commissioner met her burden at step five. The Commissioner's decision is AFFIRMED. Signed on 1/26/2018 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DARLA MARIE DUKE,
Plaintiff,

Case No. 6:16-cv-2176-SI
OPINION AND ORDER

v.
NANCY A. BERRYHILL,
Commissioner of Social Security,
Defendant.
Robert A. Baron and Katherine Eitenmiller. HARDER WELLS BARON & MANNING, PC. 474
Willamette Street, Suite 200, Eugene, OR, 97401. Of Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204;
Alexis L. Toma, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL, Social
Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of
Attorneys for Defendant.
Michael H. Simon, District Judge.
Plaintiff Darla Marie Duke seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her application
for Disability Insurance Benefits (“DIB”). For the following reasons, the Commissioner’s
decision is AFFIRMED.

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STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359
F.3d 1190, 1193, 1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a
whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn
v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466
F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
BACKGROUND
A. Plaintiff’s Application
Duke was born in 1982 and holds a General Equivalency Degree. AR 98. Prior to the
onset of her alleged disability, Duke worked at various times as a caregiver/nurse assistant, fast
food cashier, and telephone sales customer service representative. AR 72, AR 96-97. Between
PAGE 2 – OPINION AND ORDER

October 2013 and June 2014, after Duke’s alleged disability onset date, Duke worked as a
certified nurse’s assistant (“CNA”). AR 50, 72.
Duke filed for Disability Insurance Benefits on March 1, 2012, alleging a disability onset
date of February 1, 2012. AR 48. Duke claimed that she was unable to work due to limitations
resulting from anxiety, depression, post-traumatic stress disorder, hypothyroidism, fibromyalgia,
sciatica, bilateral hip bursitis, scoliosis, and rapid heart rate. AR 212. Duke’s application was
initially denied on August 27, 2012 (AR 106-118), and was denied on reconsideration on
July 29, 2013 (AR 120-136). Duke requested a hearing, which took place on September
17, 2014. In a decision issued November 14, 2014, ALJ Robert Spaulding denied Duke’s claim
for benefits. Duke sought review from the Appeals Council, which was denied. Duke now seeks
review of the ALJ’s decision.
B. The Sequential Analysis
A claimant is 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); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1.

Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.

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§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2.

Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.

3.

Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.

4.

Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.

5.

Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

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The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that 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.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
Applying the sequential analysis, the ALJ concluded that Duke had not been disabled
from the alleged onset date of February 1, 2012. At step one, the ALJ determined that Duke met
the insured status requirements through March 31, 2016, and that Duke had engaged in
substantial gainful activity between October 2013 and June 2014. Because Duke had engaged in
substantial gainful activity for only a portion of the alleged period of disability, the ALJ
continued the sequential analysis. At step two the ALJ found that Duke had the following severe
impairments: lumbar spine arthropathy, degenerative joint disease of the knees, right hip vascular
disorder, bilateral hip bursitis, hemangiolymphangioma, obesity, major depressive disorder, posttraumatic stress disorder, and social phobia. AR 50. Other medical conditions noted in Duke’s
records were determined to be non-severe. AR 51.
At step three, the ALJ concluded, first, that none of Duke’s severe impairments met or
equaled any listed impairment. AR 51-52. The ALJ then moved on to determine Duke’s RFC.
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The ALJ concluded that Duke had the RFC to perform sedentary work, as defined in 20 C.F.R.
§ 404.1567(a), but with some additional limitations. Specifically:
[S]he can occasionally climb ramps and stairs and never climb
ladders and scaffolds. Further, the claimant can occasionally stoop,
but not kneel, crouch, and crawl. The claimant is additionally
limited to no exposure to hazards, such as unprotected heights and
moving mechanical parts. The claimant can perform simple and
routine tasks and can have superficial interaction with coworkers
and the public (defined as casual or perfunctory).
AR 53. In determining the RFC, the ALJ examined Duke’s symptoms and their intensity. In
doing so, the ALJ concluded that not all of Duke’s subjective symptom complaints were
credible.
At step four, the ALJ found that Duke was unable to perform her past relevant work as a
caregiver, cashier, or customer service person based on her RFC. AR 58. At step five, relying on
testimony by a vocational expert, the ALJ found that Duke could adjust to work existing in
significant numbers in the national economy. Specifically, Duke could work as a final assembler
(optical), as a film touch-up inspector, and as a sales and billing clerk. AR 59. Therefore, the
ALJ found that Duke had not been disabled since the alleged onset date of February 1, 2012.
AR 59.
Duke appeals the ALJ’s decision insofar as it rejected portions of Duke’s subjective
symptom testimony. Duke argues that the ALJ failed to provide clear and convincing reasons,
supported by substantial evidence in the record, to reject Duke’s subjective symptom testimony.
Duke argues that her subjective symptom testimony should be fully credited, and that such
testimony would require a finding of disability. As a result, Duke argues, the Commissioner
failed to meet her burden at step five.

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DISCUSSION
A. Credibility Determination Standards
There is a two-step process for evaluating a claimant’s testimony about the severity and
limiting effect of the claimant’s symptoms.1 Vasquez v. Astrue, 572 F.3d 586, 591 (9th
Cir. 2009). “First, the ALJ must determine whether the claimant has presented objective medical
evidence of an underlying impairment ‘which could reasonably be expected to produce the pain
or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)
(quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the
claimant need not show that her impairment could reasonably be expected to cause the severity
of the symptom she has alleged; she need only show that it could reasonably have caused some
degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily

1

Duke argues that Social Security Ruling (“SSR”) 16-3p should apply to the ALJ’s
consideration of her subjective symptom testimony. At the time Duke submitted her brief in
August 2017, it was not entirely clear whether SSR 16-3p, which went into effect on March 28,
2016, applied retroactively to decisions issued prior to that date. In October 2017, however, the
Social Security Administration republished SSR 16-3p and clarified that a reviewing court
should “use[] the rules that were in effect at the time” of the decision under review. Because the
ALJ’s final decision from which Duke appeals was issued on November 14, 2014, SSR 16-3p
does not apply. See SSR 16-3p, available at 2017 WL 5180304 (republishing SSR 16-3p).
PAGE 7 – OPINION AND ORDER

discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
The ALJ may consider objective medical evidence and the claimant's treatment history,
as well as the claimant's daily activities, work record, and the observations of physicians and
third parties with personal knowledge of the claimant's functional limitations. Smolen, 80 F.3d
at 1284. The Commissioner recommends assessing the claimant's daily activities; the location,
duration, frequency, and intensity of the individual's pain or other symptoms; factors that
precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other
than medication, the individual receives or has received for relief of pain or other symptoms; and
any measures other than treatment the individual uses or has used to relieve pain or other
symptoms. See SSR 96–7p, available at 1996 WL 374186. The ALJ may not, however, make a
negative credibility finding “solely because” the claimant's symptom testimony “is not
substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin., 466
F.3d 880, 883 (9th Cir. 2006).
Further, an ALJ also “may consider . . . ordinary techniques of credibility evaluation,
such as the reputation for lying, prior inconsistent statements concerning the symptoms, . . . other
testimony by the claimant that appears less than candid [and] unexplained or inadequately
explained failure to seek treatment or to follow a prescribed course of treatment.” Smolen, 80
F.3d at 1284. The ALJ's credibility decision may be upheld overall even if not all of the ALJ's
reasons for rejecting the claimant's testimony are upheld. See Batson v. Comm'r Soc. Sec.
Admin., 359 F.3d 1190, 1197 (9th Cir.2004).

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B. Duke’s Testimony
At the hearing, Duke described her typical day in 2013, before she returned to work as a
CNA. AR 76. Duke explained that she would wake up, escort her children to the school bus, then
come home and sit down. She would try to do small chores around the house, taking several
breaks to sit. Duke would then retrieve her kids from the school bus at the end of their day.
AR 76-77. Duke testified that at the time of the hearing, her typical day was essentially the same.
AR 85, 88. Duke testified that she has difficulty breathing when walking down her long
driveway. Duke accompanies her husband to the grocery store approximately once every four
months, and picks up groceries on occasion, if she is out of the house for a doctor’s appointment.
Duke testified that she can be active for about a ten-minute period before needing to rest for
about 30 minutes or more. AR 91.
Duke also testified that for nine months during her alleged period of disability, between
October 2013 and June 2014, she worked four days per week as a CNA for seven and a half
hours per day. AR 72. Duke testified that she was unable to independently roll or transfer
patients due to her back and hip pain, and would require assistance in doing so. AR 92. Duke
further testified that during this time she took between six and ten breaks of 15 to 20 minutes
throughout the day to rest and elevate her feet. AR 92-94. Duke testified that she missed work at
least one to two days per month due to her medical conditions. AR 72-73. According to Duke,
after nine months Duke’s employer “pretty much wanted [Duke] to leave,” and Duke’s doctors
advised her to stop working due to swelling in her knees. AR 77-78.
C. The ALJ’s Decision
The ALJ concluded that Duke’s statements concerning the intensity, persistence, and
limiting effects of her symptoms were not entirely credible. The ALJ gave several reasons for
rejecting portions of Duke’s testimony and subjective complaints. To the extent that these were
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specific, clear and convincing reasons, supported by substantial evidence in the record, the Court
must affirm the ALJ’s credibility determination.
1. Work and Daily Activities
The ALJ concluded that Duke’s work and daily activities called into question the
credibility of her subjective symptom testimony. First, the ALJ found Duke’s testimony
regarding her ability to work during the nine-month period in which she was employed as a CNA
to be non-credible, because Duke maintained her job for nine months, there was no evidence that
she was ever disciplined for excessive breaks, and there was no evidence that Duke’s employer
was providing her with a special accommodation.
Evidence that, during a period of alleged disability, a claimant is able to continue past
work activities, is a clear and convincing reason to discredit a claimant’s testimony. See Greger
v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2005) (“Moreover, Greger told the VA in 2000 that he
did carpentry work ‘under the table’ through 1999, well after his date last insured. The ALJ
noted evidence that after his surgery Greger was ‘active with yard work, work around the house,
and that he was able to continue his past work activities as a contractor.’”). Duke characterizes
this nine-month period as a failed work attempt, which ended because Duke’s employer wanted
her to leave, and Duke’s doctors recommended that she stop working. To be sure, “[i]t does not
follow from the fact that a claimant tried to work for a short period of time and, because of his
impairments, failed, that he did not then experience pain and limitations severe enough to
preclude him from maintaining substantial gainful employment.” Lingenfelter v. Astrue, 504
F.3d 1028, 1038 (9th Cir. 2007). Notably, “the Social Security Administration permits recipients
of disability benefits to work on a trial basis [of less than nine months] without the trial work
period adversely affecting their disability status.” Id. at 1039 (citing 20 C.F.R. § 404.1592).
Thus, the Ninth Circuit has suggested that “working for almost nine months is not evidence that
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a disability benefit recipient is no longer disabled.” Id. at 1039. Nonetheless, in this case, the
ALJ concluded that because there was no objective evidence suggesting that this was a failed
work attempt, it was inconsistent with Duke’s own description of her functioning.
The ALJ also pointed to evidence that, although Duke testified at the hearing that she
worked seven and a half-hour shifts four days per week, Duke told a medical provider that she
was working “double shifts” at the time. See AR 1262. Given this record, the Court cannot say
that it was irrational for the ALJ to conclude that Duke’s work as a CNA for nine months
demonstrated an ability to continue past work activities. Therefore, this was a clear and
convincing reason to discredit Duke’s testimony about the alleged severity of her disabilities.
In addition to Duke’s work activity, the ALJ pointed to Duke’s other activities as being
inconsistent with her alleged symptom severity. Daily activities can form the basis of an
adverse credibility finding where the claimant's activities either contradict his or her other
testimony or meet the threshold for transferable work skills. See Orn, 495 F.3d at 639; Molina v.
Astrue, 674 F.3d 1104, 1112–13 (9th Cir. 2012). For a credibility analysis, the ALJ “need not
consider whether a claimant's daily activities are equivalent to full-time work; it is sufficient that
the claimant's activities ‘contradict claims of a totally debilitating impairment.’” Whittenberg v.
Astrue, 2012 WL 3922151 at *4 (D. Or. Aug.20, 2012) (quoting Molina, 674 F.3d at 1113); see
also Denton v. Astrue, 2012 WL 4210508 at * 6 (D. Or. Sept.19, 2012) (“While [claimant's]
activities of daily living do not necessarily rise to the level of transferable work skills, they do
contradict his testimony regarding the severity of his limitations.”). A claimant, however, need
not be utterly incapacitated to receive disability benefits, and sporadic completion of minimal
activities is insufficient to support a negative credibility finding. Vertigan v. Halter, 260
F.3d 1044, 1050 (9th Cir.2001); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)

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(requiring the level of activity to be inconsistent with the claimant's claimed limitations to be
relevant to his or her credibility).
The ALJ noted that Duke told a medical provider in April 2014 that she went rollerskating every Saturday for about two hours. AR 1262. The ALJ further noted that Duke had also
indicated, during the time of her alleged disability, that she went hunting. Duke’s records reveal
that she was injured in a hunting-related accident in October 2013. AR 1279. The ALJ also noted
that Duke cared for her two young children. These activities, the ALJ concluded, indicated that
Duke was capable of a higher level of functioning than she alleged.
An ALJ may not penalize disability claimants “for attempting to lead normal lives in the
face of their limitations.” Reddick, 157 F.3d at 722. Engaging in activities such as light
household chores, cooking meals, and grocery shopping do not weigh against a
plaintiff's credibility. Vertigan, 260 F.3d at 1050 (“This court has repeatedly asserted that the
mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving
a car, or limited walking for exercise, does not in any way detract from her credibility as to her
overall disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.”)
(quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). Neither party has pointed to
evidence in the record specifying how, exactly, Duke cares for her children, other than escorting
them to and from the school bus each day. Duke testified that she could complete about ten
minutes of household chores before needing to rest for at least 30 minutes. Thus, the fact that
Duke cares for her children is not a clear and convincing reason to discredit her symptom
testimony.
With respect to Duke’s hunting accident, the record is sparse on the surrounding
circumstances, and neither side has pointed to evidence that suggests Duke regularly hunted, or

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how much walking this activity involved. As such, this was not a clear and convincing reason,
supported by the record, to reject her testimony. Duke’s statement to a medical provider that she
went roller skating for two hours every weekend, however, is such a reason. It contradicts
Duke’s testimony that she is not able to walk to the end of her driveway comfortably, or to be
active for more than ten minutes before needing a long break. As such, this was a clear and
convincing reason, supported by the evidence, to reject Duke’s testimony.
2. Inconsistencies Between Duke’s Complaints and Other Evidence
The ALJ also concluded that the alleged severity of Duke’s physical and mental
symptoms was not fully consistent with her own presentation during medical exams, and was not
supported by objective medical evidence in the record. The ALJ also cited several instances
suggesting a tendency for Duke to exaggerate her symptoms.
Although Duke complained of low back pain, the ALJ noted that lumbar spine imaging
and x-rays generally revealed unremarkable findings. See AR 490, 551. During physical therapy
treatment between March 2012 and April 2012, Duke exhibited guarded movement. AR 422. In
March 2013, Dr. Agsten noted that Duke’s pain complaints seemed out of proportion with
Duke’s described injury. AR 480. In November 2012, a provider noted that Duke was moving
and moaning constantly, but that Duke displayed normal gait and station and normal muscle
strength and tone. AR 1001. During a visit to the emergency room for neck and back pain, Duke
was able to walk without any sign of difficulty. AR 1169.
The ALJ also noted that Duke’s behavior during a consultative physical exam in
July 2013 strongly indicated that Duke was capable of greater functioning than alleged. AR 55,
AR 1244-48). Despite subjective complaints of back pain and hip pain, testing returned normal
results. Duke easily transferred from a chair to the exam table. She sat comfortably and was able
to walk across the room and remove her shoes easily.
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The ALJ also noted that Duke’s assertion that she could not continue her work as a CNA
due to knee pain and an ongoing medical need to elevate her lower extremities was not supported
by the record. AR 55 (citing AR 1308-43, AR 1367-88). The ALJ found only one instance of
medical advice in the record to elevate the lower extremities, which was given during one
emergency room visit in May 2014, and did not suggest an ongoing need to elevate the legs.
AR 1360. Duke has not cited to any evidence of a need to elevate her legs. Further review of the
record reveals at least one other instance in which Duke was advised to elevate her limbs and to
alternate heat and cold—in February 2014. AR 1283.
The ALJ also found Duke’s mental health-related complaints to be inconsistent with
Duke’s performance during mental evaluations. During an August 2012 exam, Duke did not
present with overt signs of anxiety. She was cooperative and carried on a normal conversation.
Duke successfully completed several tests suggesting that her memory and concentration were
intact. Further, although Duke’s treatment records indicated anxiety and depression, Duke was
capable of attending appointments and seeking emergency care. Although there were some
indications of mental symptoms, the ALJ noted that mental status exams revealed a calm and
cooperative demeanor and intact memory. At some point, Duke’s mental symptoms became
exacerbated, but the ALJ noted that this was due to Duke’s cessation of all medication without
tapering. Although Duke’s mental complaints continued after resuming her course of medication,
Duke had several unremarkable presentations.
A lack of objective medical evidence affirmatively supporting a claimant’s alleged
symptom severity, standing alone, may not serve as a clear and convincing reason to discredit the
claimant's credibility when the ALJ has already determined that the claimant's impairments could
produce some of the symptoms alleged. See Rollins v. Massanari, 261 F.3d 853, 857 (9th

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Cir. 2001); Reddick, 157 F.3d at 722. Nonetheless, “it is a factor that the ALJ can consider in his
credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Furthermore, a
tendency to exaggerate may support an ALJ’s finding of lack of credibility. See Tonapetyan v.
Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (upholding an ALJ’s decision relying, in part, on a
claimant’s “tendency to exaggerate”). In addition to the clear and convincing reasons already
given, the ALJ pointed to several inconsistencies in the record between Duke’s alleged symptom
severity and her presentation during medical exams, evidencing a lack of supportive objective
evidence. Based on the record as a whole, these were specific, clear and convincing reasons to
find Duke’s testimony regarding the severity of her symptoms not wholly credible.
CONCLUSION
The ALJ provided several clear and convincing reasons, which are supported by
substantial evidence, to discredit Duke’s testimony regarding the severity of her symptoms.
Therefore, the ALJ relied on the proper evidence in determining Duke’s RFC, and the
Commissioner met her burden at step five. The Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
DATED this 26th day of January, 2018.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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