Shantz v. Commissioner Social Security Administration

Filing 12

Opinion and Order. The Court AFFIRMS the ALJ's decision and DISMISSES this matter pursuant to sentence four of 42 U.S.C. § 405(g). IT IS SO ORDERED. Signed on 3/20/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KYNAN A. SHANTZ,
Plaintiff,
v.
COMMISSIONER, Social Security
Administration,
Defendant.

SHERWOOD J. REESE
DREW L. JOHNSON
Drew L Johnson, P.C.
1700 Valley River Drive
Eugene, OR 97401
[phone]
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204
[phone]

1 - OPINION AND ORDER

6:17-cv-01149-BR
OPINION AND ORDER

MICHAEL W. PILE
Acting Regional Chief Counsel
SARAH ELIZABETH MOUM
Special Assistant United States Attorneys
Office of General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant

BROWN, Senior Judge.
Plaintiff Kynan A. Shantz seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Disability Insurance Benefits (DIB) under Title II of the
Act.

This Court has jurisdiction to review the Commissioner's

final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
On July 10, 2013, Plaintiff filed his applications for DIB.
Tr. 10.1

Plaintiff alleged a disability onset date of

February 1, 2012.

Tr. 10.

and on reconsideration.

1

His application was denied initially

On March 8, 2016, an Administrative Law

Citations to the official transcript of record filed by
the Commissioner on November 22, 2017, are referred to as “Tr.”
2 - OPINION AND ORDER

Judge (ALJ) held a hearing.

Tr. 38-68.

was represented by an attorney.

At the hearing Plaintiff

Plaintiff and a vocational

expert (VE) testified at the hearing.
On May 18, 2016, the ALJ issued a decision in which he found
Plaintiff is not disabled and, therefore, is not entitled to
benefits.

Tr. 10-23.

On June 27, 2017, the Appeals Council

denied Plaintiff’s request to review the ALJ’s decision, and the
ALJ’s decision became the final decision of the Commissioner.
Tr. 1-3.

See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On July 24, 2017, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner’s decision.

BACKGROUND
Plaintiff was born on April 25, 1974, and has some college
education.

Tr. 21, 207.

Plaintiff alleges disability since

February 1, 2012, and was last insured through December 31, 2017.
Tr. 10, 12.

Plaintiff alleges disability due to chronic lumbar

strain; chronic tendonitis at the Achilles insertion point;
excessive prominence posterior right calcaneous post op; righthip muscular strain; patellofemeral strain both knees; left-hip
muscular strain; dysthymic disorder; and muscular/skeletal
injuries to his feet, knees, and hips.

Tr. 206.

Except as noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

3 - OPINION AND ORDER

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 12-21.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden a claimant must demonstrate his

inability "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."
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.

42

U.S.C. § 405(g).

See also Brewes v. Comm’r, 682 F.3d 1157, 1161

(9th Cir. 2012).

Substantial evidence is “relevant evidence that

a reasonable mind might accept as adequate to support a
conclusion.”

Molina, 674 F.3d. at 1110-11 (quoting Valentine v.

Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)).
4 - OPINION AND ORDER

It

is "more than a mere scintilla" of evidence but less than a
preponderance.

Id. (citing Valentine, 574 F.3d at 690).

The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS
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 of

Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011).

See also

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R.
§ 404.1520.

Each step is potentially dispositive.

At Step One the claimant is not disabled if the Commissioner
5 - OPINION AND ORDER

determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. § 404.1520(a)(4)(I).

See also Keyser, 648

F.3d at 724.
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.

Stout v. Comm’r Soc.

Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).

See also 20

C.F.R. §§ 404.1509, 404.1520(a)(4)(ii); Keyser, 648 F.3d at 724.
At Step Three the Commissioner must determine whether a
claimant’s impairments meet or equal one of the listed
impairments and are so severe that they preclude substantial
gainful activity.

The claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 404.1520(a)(4)(iii).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

The

criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.

6 - OPINION AND ORDER

20 C.F.R.

§ 404.1520(e).

See also Social Security Ruling (SSR) 96-8p.

“A

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).

The assessment of a claimant's

RFC is at the heart of Steps Four and Five of the sequential
analysis when the ALJ is determining whether a claimant can still
work despite severe medical impairments.

An improper evaluation

of the claimant's ability to perform specific work-related
functions "could make the difference between a finding of
'disabled' and 'not disabled.'"

SSR 96-8p, at *4.

At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.

20 C.F.R. § 404.1520(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.

20 C.F.R. § 404.1520(a)(4)(v).

Keyser, 648 F.3d at 724-25.

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.

Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).

7 - OPINION AND ORDER

The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.

If the Commissioner meets this burden, the claimant

is not disabled.

20 C.F.R. § 404.1520(g)(1).

ALJ’S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since February 1, 2012, his alleged
onset date.

Tr. 12.

At Step Two the ALJ found Plaintiff has the severe
impairments of “status post surgeries of the right ankle, lumbar
degenerative disc disease, and bilateral hip strain.”

Tr. 12.

At Step Three the ALJ found Plaintiff does not have an
impairment or combination of impairments that meet or equal the
criteria for any impairment in the Listing of Impairments.
Tr. 15-16.

The ALJ found Plaintiff has the RFC to perform light

work with the following limitations:

lift and/or carry 20 pounds

occasionally and 10 pounds frequently, stand and/or walk for six
hours in an eight-hour work day, and sit for six hours in an
eight-hour work day.

The ALJ also found Plaintiff can frequently

balance; occasionally stoop, kneel, crouch, and crawl;
frequently perform overhead reaching with both arms; and
frequently handle, finger, and feel with both hands.

8 - OPINION AND ORDER

The ALJ

also found Plaintiff is precluded from working around extreme
cold conditions, working with machinery that causes vibrations,
working at unprotected heights, working with heavy machinery, and
operating a vehicle as part of the day-to-day job.

Tr. 16.

At Step Four the ALJ found Plaintiff is unable to perform
his past relevant work.

Tr. 21.

At Step Five the ALJ found Plaintiff could perform jobs that
exist in significant numbers in the national economy such as
electronics worker, electrical-accessories assembler, and
storage-facility rental clerk.

Tr. 22.

Accordingly, the ALJ

found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 22.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) failed at Step
Two to include Plaintiff’s conditions of gout and polyarticular
joint pain2 as a severe impairment; (2) failed to provide clear
and convincing reasons for rejecting Plaintiff’s testimony;
(3) improperly rejected the lay-witness statements of Christina

2

“Gout” is a condition resulting from monosodium urate
crystals in tissue usually in and around joints and most often
causing acute arthritis. “Polyarticular joint pain” is pain in
multiple joints caused by gout. Merck Manual, Professional
Edition (www.merckmanuals.com). Plaintiff sometimes refers to
both gout and polyarticular joint pain and sometimes refers to
only gout. For purposes of this Opinion, the Court will use the
term “gout” to include polyarticular joint pain.
9 - OPINION AND ORDER

Shantz, Plaintiff’s wife; (4) gave less than “great weight” to
the Veteran’s Administration (VA) determination that Plaintiff is
disabled; and (5) failed at Step Five to include all of
Plaintiff’s functional limitations in his evaluation of
Plaintiff’s RFC.
The Commissioner contends (1) the ALJ’s finding at Step Two
that Plaintiff’s gout was a nonsevere impairment is supported by
substantial evidence in the record, and, in any event, any error
was harmless; (2) the ALJ provided clear and convincing reasons
for discounting Plaintiff’s subjective symptom testimony; (3) the
ALJ provided legally sufficient reasons for discounting the laywitness’s statements; (4) the ALJ properly considered and
discounted the VA’s opinion and provided valid reasons for doing
so; and (5) the ALJ properly assessed Plaintiff’s RFC and, as a
result, did not err at Step Five.
I.

The ALJ’s failure to include gout as a severe impairment at
Step Two was harmless error.
Plaintiff contends the ALJ erred when he failed to include

Plaintiff’s gout as a severe impairment at Step Two.

Plaintiff

asserts the medical evidence together with Plaintiff’s testimony
are sufficient to establish these impairments as severe.
The Commissioner contends the ALJ properly found Plaintiff’s
gout symptoms to be nonsevere impairments based on the medical
evidence.

The Commissioner also argues even if the ALJ erred,

his error was harmless inasmuch as the ALJ resolved Step Two in
10 - OPINION AND ORDER

Plaintiff’s favor and continued the sequential analysis.
A.

Standards
The Step Two inquiry is a de minimis screening device

to dispose of groundless claims.

Bowen v. Yuckert, 482 U.S. 137,

153–54 (1987)(Step Two inquiry intended to identify claimants
whose medical impairments are so slight that it is unlikely they
would be found disabled).
The claimant bears the burden to provide medical
evidence to establish at Step Two that he has a severe
impairment.

20 C.F.R. § 404.1512.

An impairment or combination

of impairments is not severe “if it is merely a slight
abnormality” that has “no more than a minimal effect” on an
individual's ability to work.

Webb v. Barnhart, 433 F.3d 683,

686 (9th Cir. 2005).
The ALJ is required to consider the combined effect of
all of the claimant's impairments on his ability to function
without regard to whether each alone is sufficiently severe.
Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir.2003).

See also

Smolen v. Chater, 80 F.3d 1273, 1289–90 (9th Cir.1996); 42 U.S.C.
§ 423(d)(2)(B); 20 C.F.R. § 416.923.

If the ALJ determines a

claimant is severely impaired at Step Two, the ALJ continues with
the sequential analysis and considers all of the claimant's
limitations.
1996).

SSR 96–9p, available at 1996 WL 374184 (July 2,

Step Two is “merely a threshold determination of whether

11 - OPINION AND ORDER

the claimant is able to perform his past work.”
Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007).

Hoopai v.

If an ALJ fails to

consider limitations imposed by an impairment at Step Two but
considers them at a later step in the sequential analysis, any
error at Step Two is harmless. Lewis v. Astrue, 498 F.3d 909, 911
(9th Cir. 2007).

See also Burch v. Barnhart, 400 F.3d 676, 682

(9th Cir. 2005).
B.

Analysis
The ALJ found Plaintiff’s gout is nonsevere on the

ground that Plaintiff’s symptoms improved on medication and were
“transient and not ongoing.”

Tr. 13.

The ALJ relied on

Plaintiff’s testimony at the hearing that his gout was under
control with medication and that he had only four major flare-ups
of his symptoms during the past year, which lasted only “a week
or two.”

Tr. 13, 56.
Plaintiff was first diagnosed with gout in 2009.

Tr. 13, 539, 583.
On April 7, 2014, Plaintiff was treated at the VA
Medical Center by Thomas Kinane, M.D., a primary-care physician,
for complaints of wrist pain.

Tr. 539.

The records indicate

Plaintiff had been experiencing “almost continuous gouty symptoms
for the past 4 months” and his gout was “fairly aggressive.”
Tr. 539-40.

The treatment plan included Prednisone and delayed

initiation of Allopurinol.
12 - OPINION AND ORDER

Tr. 540.

On April 19, 2014, J. Wendling, D.O., a consultative
physician, examined Plaintiff.

Tr. 364-70.

At that time

Plaintiff was experiencing a gout flare in his right wrist.
Dr. Wendling stated Plaintiff “will feel significantly better and
a fair amount of his polyarticular joint pain will improve
greatly if not completely resolved with adequate treatment of his
gout.”

Tr. 369-70.

Dr. Wendling assessed a maximum

standing/walking capacity of up to six hours with no other
functional limitations.

Tr. 369.

On August 11, 2014, Plaintiff was treated by Rashmi
Shah, M.B.B.S., a rheumatologist at the VA Medical Center.
Tr. 632.

At that time Plaintiff reported he had experienced six

or seven attacks in the past six months, and each attack lasted
from two or three days to two or three weeks.

Dr. Shah noted

Plaintiff had pain and swelling associated with redness in
multiple joints and had been “on and off” Allopurinol for the
last five years.

Although Plaintiff’s uric acid level had

decreased since April 2014, he continued to have pain in his
wrist and knee.

Tr. 632.

Dr. Shah noted Plaintiff had limited

range of motion with minimal effusion and warmth in his right
wrist and limited range of motion and pain on flexion of his left
ankle with minimal effusion.

Tr. 634.

Dr. Shah recommended

Plaintiff continue taking Allopurinol and also start taking
Colchicine to lower his uric acid levels.

13 - OPINION AND ORDER

Dr. Shah noted “even

with well controlled uric acid levels and Colchicine” Plaintiff
could “expect few gouty flares as [he] has a longstanding
[history] of uncontrolled gout.”

Tr. 634.

In October 2014 Plaintiff was again treated at the VA
Medical Center for swelling in his left knee that he had
experienced for two or three days and right knee and ankle
swelling that he had experienced for two or three weeks, all of
which decreased with rest.

Tr. 635.

His left knee was aspirated

and showed crystals that confirmed gout.

Tr. 635-36.

In November 2014 Thomas Kinane, M.D., another treating
physician at the VA, attributed Plaintiff’s acute gout to the
fact that Plaintiff had discontinued using Prednisone.

Tr. 506.

In January 2016 Dr. Shah noted Plaintiff experienced
symptoms in multiple joints at different times, including his
ankles, toes, wrists, thumbs, and elbows.

Tr. 13, 592.

Dr. Shah

also noted Plaintiff had “a significant reduction in frequency of
attacks from 2 attacks a month to 1 attack a month to 1 attack
every 6 months.”

Tr. 13, 593.

Kenneth Scalapino, M.D., another

treating physician at the VA, attributed Plaintiff’s “excellent
uric acid control” to his use of Allopurinol.

Tr. 596.

Tests in February 2016 showed abnormal liver findings,
and Norbert Gerondale, M.D., a treating physician at the VA,
advised Plaintiff to discontinue the use of Allopurinol.
686.

Tr. 13,

Plaintiff testified he has taken Prednisone when his

14 - OPINION AND ORDER

symptoms flare, but Prednisone is harmful to his liver.
Tr. 49.
Although Plaintiff’s symptoms are better when
controlled with medications, the evidence supports the fact that
his symptoms recur and last anywhere from two or three days to
two or three weeks.
On this record the Court concludes the ALJ erred when
he failed to include Plaintiff’s gout as a severe impairment in
light of the frequency and length of his symptoms, which are
supported by objective medical evidence.
Nevertheless, even if the ALJ erred by failing to find
gout to be a severe impairment, the Ninth Circuit has held any
error in failing to designate a specific impairment as severe
does not prejudice a claimant if the ALJ has resolved Step Two in
the claimant's favor.

Burch v. Barnhart, 400 F.3d 676, 682 (9th

Cir. 2005)(any error at Step Two in finding an impairment
nonsevere is harmless when Step Two is resolved in the claimant's
favor).
Accordingly, the Court concludes any error by the ALJ at
Step Two when he found gout was not a severe impairment was
harmless because the ALJ found Plaintiff has other severe
impairments and continued the sequential analysis.
II.

The ALJ did not err when he found Plaintiff’s testimony was
not fully credible.
Plaintiff contends the ALJ did not provide clear and

15 - OPINION AND ORDER

convincing reasons for discounting Plaintiff’s testimony.
The Commissioner, however, contends substantial evidence in
the record supports the ALJ’s partial rejection of Plaintiff’s
subjective symptoms testimony.
A.

Standard
In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments and show the impairment or
combination of impairments could reasonably be expected to
produce some degree of symptom.
1986).

799 F.2d 1403, 1407 (9th Cir.

The claimant, however, need not produce objective medical

evidence of the actual symptoms or their severity.

Smolen, 80

F.3d at 1284.
If the claimant satisfies the above test and there is
not any affirmative evidence of malingering, the ALJ can reject
the claimant's testimony only if he provides clear and convincing
reasons for doing so.

Parra v. Astrue, 481 F.3d 742, 750 (9th

Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir.
1995)).

General assertions that the claimant's testimony is not

credible are insufficient.

Id.

The ALJ must identify "what

testimony is not credible and what evidence undermines the
claimant's complaints."

16 - OPINION AND ORDER

Id. (quoting Lester, 81 F.3d at 834).

B.

Analysis
Plaintiff testified at the hearing that “his biggest

problem would be a lack of being able to be on any sort of [work]
schedule” because “he can’t control when different problems will
occur and how often they occur” and the problems can last “one
day or it could last two weeks.”

Plaintiff stated the more he

exerted himself, the worse it would hurt later.

Tr. 42.

Plaintiff testified on a bad day he spends his time on the floor
or in bed, which prevents him from performing many activities.
Tr. 50.

As noted, Plaintiff also testified his gout is under

better control and major flare-ups are not as frequent when he is
on medication, but the “minor ones have still been around.”
Tr. 56.
The ALJ concluded Plaintiff’s statements concerning the
intensity, persistence, and limiting effects of his symptoms “are
not entirely consistent with the medical evidence and other
evidence in the records” and Plaintiff’s activities “suggest[]
that his limitations are not as significant as alleged.”

Tr. 17,

19.
The ALJ relied on Dr. Wendling’s consultative report of
April 19, 2014, that Plaintiff had a normal gait and full
strength in his lower extremities.

Tr. 17.

The ALJ also relied

on x-rays taken in 2014 that showed Plaintiff had only a mild
decrease in “disc space height” at L4-L5 and imaging of

17 - OPINION AND ORDER

Plaintiff’s hip was negative.

Tr. 17.

In June 2015 Plaintiff

had full lumbar and hip range of motion, and he had normal motor,
sensory, and deep tendon reflexes even though he was walking with
a cane.

Tr. 19.

In June 2015 Plaintiff received a steroid

injection in his right hip for pain.

Tr. 479.

In September 2015

Plaintiff reported relief from the steroid injection in June had
lasted about two months.

Tr. 471.

The ALJ also concluded Plaintiff’s activities of daily
living were inconsistent with his alleged limitations.

For

example, Plaintiff reported caring for his children, helping them
with homework, and preparing meals even though Plaintiff received
some assistance from his wife and a babysitter in caring for his
children.

Tr. 17, 220.

Plaintiff also did household chores,

laundry, cleaning, driving, and shopping.

Tr. 222.

On this record the Court concludes the ALJ did not err
when he partially discounted Plaintiff’s symptom testimony
because the ALJ provided clear and convincing reasons for doing
so.
III. The ALJ gave germane reasons for discounting lay-witness
evidence.
Plaintiff contends the ALJ erred when he failed to give
reasons that are germane to the lay-witness statements of
Christina Shantz, Plaintiff’s wife, regarding Plaintiff’s
impairments and limitations.
The Commissioner contends the ALJ properly discounted the
18 - OPINION AND ORDER

lay-witness statement of Christina Shantz for the same reasons
that the ALJ found Plaintiff’s testimony was not fully credible.
A.

Standards
Lay-witness testimony regarding a claimant's symptoms

is competent evidence that the ALJ must consider unless he
"expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so."
236 F.3d 503, 511 (9th Cir. 2001).

Lewis v. Apfel,

The ALJ's reasons for

rejecting lay-witness testimony must also be "specific."

Stout

v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).
Nevertheless, an ALJ is not required to address each lay-witness
statement or testimony on an "individualized, witness-by-witnessbasis.

If the ALJ gives germane reasons for rejecting testimony

by one witness, the ALJ need only point to those reasons when
rejecting similar testimony by a different witness."

Molina v.

Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012)(quotation omitted).
Germane reasons for discrediting a witness's testimony
include inconsistency with the medical evidence and the fact that
the testimony "generally repeat[s]" the properly discredited
testimony of a claimant.
1218 (9th Cir. 2005).

Bayliss v. Barnhart, 427 F.3d 1211,

See also Williams v. Astrue, 493 F. App'x

866 (9th Cir. 2012).
B.

Analysis
In October 2013 Christina Shantz stated in her Third-

19 - OPINION AND ORDER

Party Function Report that Plaintiff takes a long time to get up
and to get his joints moving in the morning; that he is always
stiff and sore; that he will be in bed for two or three days when
he strains his back; and “the pain was too much” for him without
his medication.

Tr. 230.

Christina Shantz also indicated she

helps Plaintiff with day-to-day activities, including taking care
of their baby and other household chores.

Tr. 231.

She stated

Plaintiff “does just a little bit at a time throughout the day 2
to 3 days a week.”

Tr. 232.

She indicated Plaintiff’s symptoms

affected his ability to lift, squat, bend, stand, walk, sit,
climb stairs, complete tasks, and follow instructions.

Tr. 235.

She also stated Plaintiff’s symptoms affected his ability to
concentrate and to understand.
The ALJ stated he considered the report of Christina
Shantz regarding Plaintiff’s activities.

As noted, the ALJ found

Plaintiff’s activities “suggest that his limitations are not as
significant as alleged” and “the reported severity . . . is not
consistent with the objective medical evidence.”

Tr. 19-20.

The

ALJ again noted Dr. Wendling’s evaluation of Plaintiff as having
full motor strength in his upper and lower extremities and only
slightly limited grip strength at the same time that he was
experiencing a gout flare.

The ALJ also discounted Christina

Shantz’s report for the same reasons that he found Plaintiff’s
testimony was not fully credible and the fact that treatment

20 - OPINION AND ORDER

improved Plaintiff’s gout symptoms.

Tr. 20.

On this record the Court concludes the ALJ gave
“germane” reasons for discounting the lay-witness statements of
Christina Shantz.
IV.

The ALJ did not err when he did not give “great weight” to
the VA’s disability determination.
Plaintiff contends the ALJ failed to give “great weight” to

the VA’s determination that Plaintiff is disabled as required by
McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002).
The Commissioner, however, contends the ALJ’s evaluation of
the VA’s disability determination is supported by substantial
evidence in the record.
A.

Standard
A Social Security disability determination is similar

to a VA disability determination in that both are made by federal
agencies that provide benefits to those who cannot work due to
disability.
2002).

McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir.

“[A]lthough a VA rating of disability does not

necessarily compel the SSA to reach an identical result, 20
C.F.R. § 404.1504, the ALJ must consider the VA's finding in
reaching his decision.”

Id.

An ALJ ordinarily must give “great

weight” to a VA determination of disability.
not compelled to reach an identical result.

An ALJ, however, is
Id.

See also 20

C.F.R. § 404.1504 (“A decision by any . . . other governmental
agency about whether you are disabled . . . is based on its rules
21 - OPINION AND ORDER

and is not our decision. . . .

We must make a . . .

determination based on social security law.

Therefore, a

determination made by another agency . . . is not binding on
us.”).

If the ALJ gives less than “great weight” to a VA

disability determination, however, he must provide “persuasive,
specific, valid reasons for doing so that are supported by the
record.”
B.

McCartey, 298 F.3d at 1076.
Analysis
In June 2013 the VA determined Plaintiff has “one

service connected disability currently rated at 50 percent
(dysthymic disorder) along with additional disabilities to bring
[his] combined disability rating to 90 percent.”

Tr. 179-80.

The “additional disabilities” included residuals of a foot
injury, chronic lumbar strain, and limited flexion of the knees
and thigh.

Tr. 179, 353.

Plaintiff contends there is not any

evidence in the current record by an examining or treating
physician that contradicts the VA’s conclusion regarding
Plaintiff’s disability.
Although the ALJ cited McCartey in his opinion, he gave
“little weight” to the VA's disability decision because “it is
not consistent with the overall record.”

Tr. 20.

The ALJ

concluded the VA’s 50% disability rating for Plaintiff’s
dysthymic disorder does not support a determination of disability
in this matter because the ALJ concluded Plaintiff’s condition is

22 - OPINION AND ORDER

nonsevere.

Tr. 14-15.

The ALJ stated:

“The [Plaintiff] is not

taking any psychotropic medication for this condition, and
continues to engage in a wide range of activities . . . which are
not consistent with more than mild functional limitations.”
Tr. 20.

The ALJ also found Plaintiff does not have a severe

mental-health condition based on the opinion of Michael Dennis,
Ph.D., a state-agency consultant, who found there was not any
evidence to support such a limitation.

Tr. 84-85.

The ALJ also concluded Plaintiff’s current physical
limitations are not consistent with the VA’s disability rating.
Tr. 20.

For example, although the VA gave Plaintiff a 10%

disability rating for chronic lumbar strain in its 2013
evaluation, the ALJ noted VA records dated June 20, 2015,
indicated Plaintiff had normal motor and sensory functions,
normal deep-tendon reflexes, and a full range of motion of his
lumbar.

Tr. 20, 427.

In addition, the ALJ gave great weight to

the opinion of Barry Cusack, M.D., a state-agency consultant who
reviewed Plaintiff’s records on April 29, 2014, and concluded
Plaintiff had the RFC for light work and limitations consistent
with an earlier evaluation by Susan B. Eder, M.D., another stateagency consultant, who found Plaintiff could lift and/or carry
twenty pounds occasionally and ten pounds frequently, could stand
and or walk for about six hours in an eight-hour day, and could
sit for about six hours in an eight-hour day.

23 - OPINION AND ORDER

The ALJ noted

Dr. Cusack’s findings were more recent and consistent with other
medical evidence in the record.

Tr. 21-22, 86-89.

On this record the Court concludes the ALJ provided
“persuasive, specific, [and] valid reasons” for not giving “great
weight” to the VA’s disability determination.

Accordingly, the

Court concludes the ALJ did not err when he did not give “great
weight” to the VA’s disability determination.
V.

The ALJ did not err in his assessment of Plaintiff’s RFC
and, as a result, the ALJ did not err at Step Five.
Plaintiff contends the ALJ failed to consider all of

Plaintiff’s limitations when the ALJ assessed Plaintiff’s RFC.
Specifically, Plaintiff contends the ALJ failed to include
limitations based on Plaintiff’s gout symptoms that would
preclude him from employment, and, therefore, the ALJ erred at
Step Five.
The Commissioner contends the ALJ’s assessment of
Plaintiff’s RFC was based on substantial evidence in the record,
and, therefore, the ALJ properly relied on the VE’s testimony
given in response to the ALJ’s hypothetical that included
Plaintiff’s limitations as set out in the ALJ’s assessment of
Plaintiff’s RFC.
A.

Standard
As noted, at Step Five the ALJ must determine whether

the claimant is able to do any other work that exists in the
national economy.

20 C.F.R. § 404.1520(a)(4)(v).

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The ALJ may

satisfy this burden through the testimony of a VE.
“An ALJ must propound a hypothetical question that is
based on medical assumptions supported by substantial evidence in
the record that reflects all the claimant’s limitations.”
Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001).

“The

hypothetical should be ‘accurate, detailed, and supported by the
medical record.’”
B.

Id. (quoting Tackett, 180 F.3d at 1101).

Analysis
At the hearing the ALJ posed a hypothetical to the VE

consistent with the ALJ’s assessment of Plaintiff’s RFC.

The VE

testified Plaintiff would not be able to perform his prior
occupation as a marine mammal observer, but the VE concluded
Plaintiff could perform work as an electronics worker,
electrical-accessories assembler, and storage-facility rental
clerk.

Tr. 64-65.
Plaintiff contends the medical records support his

testimony that he experiences symptoms from his gout that,
without medication, cause significant pain in his wrists and
limit his ability to perform activities according to a schedule
and to maintain regular job attendance.

Plaintiff argues,

therefore, the VE’s testimony that Plaintiff could perform other
work based on an inaccurate hypothetical that did not include
these limitations was erroneous.
As noted, Plaintiff has gout that was first diagnosed

25 - OPINION AND ORDER

in 2009.

Over the years Plaintiff has experienced flare-ups in

his symptoms that he reported to his doctors and subsequently
received treatment with medications.

Although the medical

records contain Plaintiff’s reports of his symptoms, the Court
points out that the only assessed limitations of Plaintiff’s
functional abilities were made by Dr. Cusack and Dr. Eder, the
state-agency consultants, and their limitations were included in
Plaintiff’s RFC as determined by the ALJ.

There is not any

evidence in the record that a treating physician assessed any
limitation of functional abilities based on Plaintiff's
condition.
In his hypothetical posed to the VE the ALJ is required
to include only those limitations that are supported by
substantial evidence in the record.

See Osenbrock v. Apfel, 240

F.3d 1157, 1163-65 (9th Cir. 2001).

“Conversely, an ALJ is not

free to disregard properly supported limitations.”

Robbins v.

Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006).

In either

case, the VE’s “opinion has no evidentiary value” if the
assumptions presented in the hypothetical are not supported by
substantial evidence in the record.
503, 518 (9th Cir. 2001).

Lewis v. Apfel, 236 F.3d

Here the ALJ included in his

hypothetical to the VE all of the “properly supported
limitations” included in his evaluation of Plaintiff’s RFC.
Thus, the ALJ properly relied on the VE’s testimony as to work

26 - OPINION AND ORDER

that Plaintiff could perform in the national economy.
On this record the Court concludes the ALJ did not err
in his assessment of Plaintiff’s RFC nor at Step Five in his
reliance on the VE’s testimony that was based on the limitations
set out in the ALJ’s assessment of Plaintiff’s RFC.

CONCLUSION
For these reasons, the Court AFFIRMS the ALJ’s decision and
DISMISSES this matter pursuant to sentence four of 42 U.S.C.
§ 405(g).
IT IS SO ORDERED.
DATED this 20th day of March, 2018.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

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