Tomlinson Early v. Commissioner Social Security Administration

Filing 17

Opinion and Order: The ALJ's decision is free of legal error and supported by substantial evidence. The Commissioner's final decision is therefore affirmed. Signed on 5/23/2019 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
VALERIE E.,1
Plaintiff,
v.

Civ. No. 6:17-cv-02037-MC
OPINION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff brings this action for judicial review of the Commissioner’s decision denying her
application for social security disability insurance benefits. This court has jurisdiction under 42
U.S.C. §§ 405(g) and 1383(c)(3). On June 4, 2014, Plaintiff filed an application for benefits,
ultimately alleging disability as of January 22, 2014. After a hearing, the administrative law
judge (“ALJ”) determined Plaintiff was not disabled under the Social Security Act. Tr. 13-26.2
Plaintiff argues the ALJ erred in finding that she did not meet or equal listing 1.04, in finding her
less-than fully credible, and in rejecting certain lay witness testimony. Because the
Commissioner’s decision is based on proper legal standards and supported by substantial
evidence, the Commissioner’s decision is AFFIRMED.
1

In the interest of privacy, this opinion uses only the first name and the initial of the last name of the nongovernmental party in this case.
2

“Tr” refers to the Transcript of Social Security Administrative Record provided by the Commissioner.

1 – OPINION AND ORDER

STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Hill
v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980
(9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative
record as a whole, weighing both the evidence that supports and that which detracts from the
ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can
reasonably support either affirming or reversing, ‘the reviewing court may not substitute its
judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d
519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).
DISCUSSION
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of
proof rests upon the claimant to meet the first four steps. If the claimant satisfies his burden with
respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. §
404.1520. At step five, the Commissioner must show that the claimant is capable of making an
adjustment to other work after considering the claimant’s residual functional capacity (RFC),
age, education, and work experience. Id. If the Commissioner fails to meet this burden, then 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

2 – OPINION AND ORDER

numbers in the national economy, the claimant is not disabled. Bustamante v. Massanari, 262
F.3d 949, 953-54 (9th Cir. 2001).
As relevant here, the ALJ found Plaintiff suffered from cervical degenerative disc disease
and lumbar degenerative disc disease. Tr. 16. There is no question that these qualify as severe
impairments. Plaintiff has suffered from chronic pain in her lower back since 1997 Tr. 190.
Around that time, Plaintiff also began suffering from neck pain. Tr. 286. Objective medical
imaging results confirmed the impairments, including evidence of nerve root compression.
Plaintiff underwent multiple surgeries over two decades in various attempts at resolving the
impairments or at least improving Plaintiff’s quality of life. The final surgery, in January of
2014, was a cervical fusion at C3-C7. Plaintiff alleges that date is her disability onset date.
Initially, Plaintiff and the surgeon, Dr. Angeles, deemed the surgery a success and Dr.
Angeles released Plaintiff to return to work. After roughly six weeks back at work, Plaintiff’s
condition deteriorated to the point Plaintiff had to quit her career as a tobacco company sales
representative. Plaintiff spent the next 18 months or so attending appointments with various
physicians, physical therapists, nurse practitioners, and a chiropractor. Generally speaking,
outside of a few weeks of improvement following steroid injections, Plaintiff’s condition during
this time neither improved nor regressed. Instead, Plaintiff generally complained of chronic pain.
In February 2016, Plaintiff began working part-time at her chiropractor’s office. For the
next year, through the date of her hearing before the ALJ, Plaintiff worked approximately 20
hours per week performing clerical office tasks. Tr. 468. With the exception of three months,
Plaintiff’s monthly earnings during that year where above the presumptive limit for substantial
gainful activity under the Act. Tr. 16, 158.

3 – OPINION AND ORDER

At step one, the ALJ found Plaintiff engaged in substantial gainful activity beginning in
March of 2016.3 Tr. 16. Therefore, the ALJ focused on the roughly two-year time period
between the alleged onset date of January 2014 and March 2016. Tr. 18. At step three, the ALJ
determined Plaintiff’s spinal impairments did not meet or medical equally the severity of listing
1.04. Tr. 17. The ALJ then determined Plaintiff had the RFC to perform light work with several
additional limitations discussed below. As noted, Plaintiff argues the ALJ erred in finding
Plaintiff did not meet or medically equal listing 1.04. Additionally, Plaintiff argues the ALJ erred
in finding Plaintiff could perform limited light work on a sustained basis. Generally, Plaintiff
argues the evidence demonstrates Plaintiff is limited to, at best, intermittent sedentary activity. I
address each argument in turn.
1. Listing 1.04
Listing 1.04 covers disorders of the spine:
1.04 Disorders of the spine (e.g. herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:
A. Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
(sitting and supine);
OR
B. Spinal arachnoiditis, confirmed by an operative note or
pathology report of tissue biopsy, or by appropriate medically
acceptable imaging, manifested by severe burning or painful
dysesthia, resulting in the need for changes in position or posture
more than once every 2 hours[.]

3

If a claimant is performing substantial gainful activity, the regulations require the ALJ to find the claimant not
disabled at step one. 20 C.F.R. § 404.1520(a)(4)(i).

4 – OPINION AND ORDER

20 C.F.R. Part 404, Subpart P, App. 1.
The ALJ specifically mentioned listing 1.04 and concluded Plaintiff did not meet or equal
the listing at step 3.4 Tr. 17. The ALJ, however, did so in a somewhat conclusory fashion, with
little explanation in the step 3 portion of the findings as to why Plaintiff’s combination of
impairments did not medically equal the listing. The ALJ’s failure to delve extensively into the
medically equals analysis is perhaps explained by the fact that Plaintiff never mentioned this
argument below. See Tr. 234-35 (alerting ALJ that Plaintiff’s theory of the case is that Plaintiff is
unable to perform full-time activity at a sedentary level and neither mentioning listing 1.04 nor
arguing that Plaintiff medically equals the listing); see also Tr. 139-40 (same); see also Tr. 32-53
(transcript from hearing where Plaintiff does not mention listing 1.04 or argue her combination
of impairments medically equals any listing).
To meet a listing, the claimant must demonstrate both a diagnosis of a listed impairment
and that the impairment results in the findings described in the listing. Marcia v. Sullivan, 900
F.2d 172, 175 (9th Cir. 1990) (noting that while regulations require diagnosis, Social Security
Ruling 83-19, at 90 (Jan. 1983) provides that “an impairment meets a listed condition ‘only when
it manifests the specific findings described in the set of medical criteria for that listed
impairment.’”). Listing 1.04A requires findings of “motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test (sitting and supine).”
Plaintiff acknowledges she lacks a positive straight-leg raising test. Additionally, the ALJ
expressly noted the record demonstrated Plaintiff did not experience motor loss. Tr. 19 (noting
April and August 2014 exams revealed Plaintiff had normal motor strength in extremities); id. at

4

The agency reviewing physicians also expressly noted they considered listing 1.04 in concluding Plaintiff could
perform light work. Tr. 60, 73.

5 – OPINION AND ORDER

19-20 (noting that although Plaintiff reported weakness in her legs in October 2014, on
examination “Lower extremity strength was 5/5 in all major muscle groups.”); id. at 21 (noting
October 2015 neurological examination revealed motor strength of 5/5 throughout). Although the
ALJ mentioned these findings when discussing Plaintiff’s RFC, the findings relate to listing
1.04A’s requirement of motor loss. After discussing two years of medical evidence, the ALJ
found that, “despite abnormalities as shown on imaging studies of the lumbar and cervical spine,
straight leg raises were negative; the claimant’s gait was generally normal; and strength in the
upper and lower extremities was typically normal.” Id. at 22 (emphasis added). Although
Plaintiff points to isolated evidence of slight motor loss, such as a June 2015 note from Katrina
Cypcar, PA-C of 4/5 motor strength in Plaintiff’s right upper extremity, the ALJ looked at the
overall record, with numerous instances of full motor strength over several years, and concluded
Plaintiff’s impairments did not result in motor loss.5 Stated another way, the ALJ resolved
somewhat conflicting evidence in the record. Substantial evidence supports the ALJ’s
conclusion. See Tr. 256, 278, 282, 297, 312, 354, 364, 394, 440, 447 (examinations indicating
Plaintiff experienced no motor loss). Therefore, the ALJ did not err in concluding Plaintiff did
not meet listing 1.04A at step three.
Plaintiff argues she meets listing 1.04B because the record contains evidence of a
diagnosis for spinal arachnoiditis, confirmed by appropriate medically acceptable imaging. In
support, Plaintiff points to an April 16, 2016 MRI showing “slight clumping, as well as slight
peripheral localization and these findings may indicate mild chronic arachnoiditis.” Tr. 405. The
regulations, however, require a specific finding, as opposed to an inference, of a listed condition.
Marcia, 900 F.2d at 175 n.3 (“An inference is not a specific finding as required by the
regulations.”). Therefore, the ALJ did not err in concluding Plaintiff did not meet listing 1.04B.
5

The ALJ pointed out PA-C Cypcar’s reference to slight motor loss. Tr. 21.

6 – OPINION AND ORDER

Plaintiff also argues that she equals listing 1.04 or, in the alternative, that Marcia requires
remand because the ALJ failed to adequately explain the finding that Plaintiff does not equal the
listing. “Equivalence is determined on the basis of a comparison between ‘the symptoms, signs
and laboratory findings’ about the claimant’s impairment as evidenced by the medical records
‘with the medical criteria shown with the listed impairment.’” Marcia, 900 F.2d at 176 (quoting
20 C.F.R. § 404.1526). “For a claimant to qualify for benefits by showing that his unlisted
impairment, or combination of impairments, is equivalent to a listed impairment, he must present
medical findings equal in severity to all the criteria for the one most similar listed impairment.”
Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (internal quotations omitted).
In Marcia, the ALJ’s finding as to equivalence consisted of: “The claimant has failed to
provide evidence of the medically determinable impairments that meet or equal the Listings to
Subpart P of Regulation 4 or the duration requirements of the Act . . . .” Marcia, 900 F.2d at 176.
The Ninth Circuit reversed, “hold[ing] that, in determining whether a claimant equals a listing
under step three of the Secretary’s disability evaluation process, the ALJ must explain adequately
his evaluation of alternative tests and the combined effects of the impairments. Applying this
standard to the findings in this case, we find that the statement that Marcia did not equal the
listing was insufficient.” Id. As discussed above, the ALJ here specifically found that “despite
abnormalities as shown on imaging studies of the lumbar and cervical spine, straight leg raises
were negative; the claimant’s gait was generally normal; and strength in the upper and lower
extremities was typically normal.” Tr. at 22 (emphasis added). This finding, supporting by

7 – OPINION AND ORDER

substantial evidence in the record, demonstrates Plaintiff’s impairments did not result in motor
loss and, therefore, were not equal in severity to all criteria in listing 1.04.
Rather than attempt to demonstrate why one unlisted impairment is equal in severity to
the criteria in listing 1.04, Plaintiff argues that the overall functional limitations from her
combined impairments are as severe as the listed impairment. In her brief, Plaintiff argues:
Although [Plaintiff] contends her impairments meet Listings 1.04A and 1.04B,
assuming arguendo that they do not, then they do at least equal Listing 1.04A
and/or 1.04B. [Plaintiff] has both a cervical spine disorder and a lumbar spine
disorder that, independently, are of listing-level severity. Even if all elements of
each listing are not present, when the combined impairments are considered, they
are medically more limiting than the requirements of Listing 1.04A or Listing
1.04B, standing alone.
Pl.’s Opening Br. 20-21 (final emphasis added), ECF No. 10.
The Supreme Court, however, rejected such an overall functional limitation argument.
See Zebley, 493 U.S. at 531 (“A claimant cannot qualify for benefits under the ‘equivalence’ step
by showing that the overall functional impact of his unlisted impairment or combination of
impairments is as severe as that of a listed impairment.”). “Since Zebley, [the Ninth Circuit has]
followed this approach, requiring claimants to equal each criterion of [the Listing] rather than
relying on overall functional impact.” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013).
The Supreme Court discussed the reasoning behind requiring a claimant to equal the criteria, as
opposed to the severity, of a listing:
The Secretary explicitly has set the medical criteria defining the listed
impairments at a higher level of severity than the statutory standard [for
disability]. The listings define impairments that would prevent an adult, regardless
of his age, education, or work experience, from performing any gainful activity,
not just substantial gainful activity. The reason for this difference between the
listings’ level of severity and the statutory standard is that, for adults, the listings
were designed to operate as a presumption of disability that makes further inquiry
unnecessary. That is, if an adult is not actually working and his impairment
matches or is equivalent to a listed impairment, he is presumed unable to work
and is awarded benefits without a determination whether he actually can perform
his own prior work or other work.
8 – OPINION AND ORDER

Zebley, 493 U.S. at 532 (internal quotations and citations omitted).
It may be that Plaintiff, who suffers from lumbar and cervical degenerative disc disease,
is more limited than one suffering from only one of the impairments. But though that may be
true, it does not factor into a step three equivalency analysis. Plaintiff does not and, as discussed
above, cannot, demonstrate her combined impairments equal the motor loss criteria of listing
1.04. Additionally, she makes no argument that the combination of her impairments somehow
equals a positive straight leg raise test or acceptable “confirmation” of spinal arachnoiditis.
Therefore, Plaintiff’s step three argument fails.
2. The ALJ’s Adverse Credibility Determination
The ALJ found that Plaintiff had the RFC to perform light work with the following
limitations: that she is able to change positions from sitting to standing as needed; that she is
prohibited from overhead reaching bilaterally; that she can frequently, but not constantly, handle,
finger, and feel bilaterally; and that she not drive as part of her job duties. Tr. 17. This finding
contrasting with Plaintiff’s self-reported limitations. Essentially, Plaintiff argues that she is
limited to no more than her current 20 hour per week receptionist work and that the ALJ erred in
finding she could work 40 hours per week in limited light work on a sustained basis.
The ALJ is not “required to believe every allegation of disabling pain, or else disability
benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).”
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597,
603 (9th Cir.1989)). The ALJ “may consider a wide range of factors in assessing credibility.”
Ghanim v. Colvin, 12-35804, 2014 WL 4056530, at *7 (9th Cir. Aug. 18, 2014). These factors
can include “ordinary techniques of credibility evaluation,” id., as well as:
(1) whether the claimant engages in daily activities inconsistent with the alleged
symptoms; (2) whether the claimant takes medication or undergoes other
9 – OPINION AND ORDER

treatment for the symptoms; (3) whether the claimant fails to follow, without
adequate explanation, a prescribed course of treatment; and (4) whether the
alleged symptoms are consistent with the medical evidence.
Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir.2007). The ALJ in this case
supported her credibility determination with references to several of the above factors:
As discussed below, the overall medical record for the approximately two-year
period from the date of the claimant’s cervical surgery through February 2016
(when she returned to work) supports a finding that the claimant had limitations
due to neck pain, back pain, and upper extremity symptoms, but was nonetheless
capable of a reduced range of light work as set forth above. Two months after her
surgery, the claimant was released by her treating surgeon to light work. While
the claimant’s symptoms worsened after she returned to her apparently non-light
job, the medical record shows that treatment of pain during the period at issue was
essentially conservative and that such treatment was at least somewhat helpful.
Moreover, the longitudinal medical record does not contain objective findings of
abnormality that support disabling limitations or that support greater limitations
set forth above.
****
The above limitations are consistent with or even more restrictive than the treating
surgeon’s release in April 2014, and much less strenuous than the work that the
claimant in fact returned to. As noted above, this work involved driving 1,000
miles per week and lifting heavy items. The claimant testified that this job caused
problems because she had to drive long distances, climb ladders, and do heavy
lifting; all of these have been addressed by the residual functional capacity
limitations determined herein. While the claimant ultimately could not sustain
such apparently heavy work, the record as a whole does not support her inability
to do any work at all. Indeed, the claimant returned to part-time work in February
2016, with earnings typically above substantial gainful activity. Her ability to start
working at that time does not appear to be related to medical improvement, as the
claimant testified as to little improvement since her surgery and the medical
record shows ongoing treatment of pain consisting of chiropractic care, pain
medications, and epidural steroid injections. The objective medical evidence
during the period at issue was not fully consistent with a disabling degree of
limitation. For example, despite abnormalities as shown on imagine studies of the
lumbar and cervical spine, straight leg raises were negative, the claimant’s gait
was generally normal; and strength in the upper and lower extremities was
typically normal. In addition, I have considered evidence of the claimant’s
activities of daily living, which were fairly robust. While the claimant testified
that she was able to do such activities because she was able to take breaks and sit
or lie down when she needed to, I find that the normal breaks and a sit/stand at
will option would have adequately accommodated the claimant’s need for breaks
and changing positions if limited to light level work.
10 – OPINION AND ORDER

Tr. 19, 22-23 (internal citations omitted).
Dr. Angeles performed Plaintiff’s January 2014 fusion surgery. The ALJ gave great
weight to Dr. Angeles’s April 2014 release of Plaintiff to full-time work with a 20-pound weight
restriction. Tr. 23. The ALJ noted that “Dr. Angeles was the claimant’s treating surgeon, and was
thus familiar with the claimant’s impairment, recovery, and functioning.” Tr. 23. An ALJ may
assign greater weight to the opinion of a specialist. Benecke v. Barnhart, 379 F.3d 587, 594 n.4
(9th Cir. 2004).
Three months following the surgery, Dr. Angeles noted that Plaintiff had “minimal” neck
pain, exacerbated by a recent physical therapy session. Tr. 282. Plaintiff was improving and was
happy with the results of her surgery. Tr. 282. “[Plaintiff] is healing well with significant
improvement from her preop pain level. She will be released to fulltime work with 20 pound
weight restriction. F/U 3 months.” Tr. 284. Three weeks later, Plaintiff followed up with Dr.
Angeles, reporting an increase in symptoms following her return to work. Tr. “She is happy with
results of her surgery but since she has been back to work her symptoms have come back.” Tr.
278. “[Plaintiff] is having exacerbation of her pain after returning to work for 2 weeks. She drove
1000 miles/week and lifts heavy. . . . She feels that at this point, she cannot return to her work.”
Tr. 280. Three months later, Dr. Angeles reviewed X-rays and confirmed the fusion “graft
incorporating both superiorly and inferiorly and fusion solid.” Tr. 301. Although Plaintiff
continued to report back and neck pain, Dr. Angeles reported Plaintiff “is overall feeling better
after she quit[] her job and moved to [B]end. She continues to mostly have problems at night.”
Tr. 299. Dr. Angeles concluded, “Overall, the patient appears to be recovering from surgery as
expected. Routine monitoring recommended.” Tr. 299.

11 – OPINION AND ORDER

The ALJ noted that the job Plaintiff returned to for six weeks was much heavier than
Plaintiff’s current successful clerical work, and heavier than that allowed under Plaintiff’s RFC.
Two months before surgery, Plaintiff reported driving, walking, and lifting aggravated her
symptoms. Tr. 286. Yet Plaintiff’s job as a tobacco sales representative consisted largely of
driving, lifting, and reaching to hang signs. Tr. 44. Dr. Angeles noted Plaintiff aggravated her
symptoms after driving 1000 miles in a week and lifting heavy objects. Tr. 280. At the time
Plaintiff returned to work, she “lifted 30 lbs on average per day all day long.” Tr. 163. She
frequently lifted 25 pounds. Tr. 163. She worked 10-14 hours per day, 5 to 6 days per week. Tr.
171. At the hearing, the ALJ asked if Plaintiff could have performed light work (as released to by
Dr. Angeles) after surgery:
Q. I note that you went back to work after your surgery and they put you back to
heavy work when your doctor said you should only do light work. Had you gone
back to lighter work would you have been able to continue to work longer?
A. No.
Q. Why not?
A. Not with that company.
Q. I’m not talking about that company. I’m sure [your attorney] has told you that
the issue isn’t whether you can do your old jobs or jobs you used to do. The issue
is whether you can do any job so let’s assume that instead of going back to the job
that you did you went back to a receptionist job right after surgery. Could you
have done that?
A. Not at that time.
Q. And why not?
A. Because of the pain I was in.
Q. What’s changed that’s allowed you to go back to work?
A. I’m still having a hard time.
Q. But you’re doing it so what’s changed or could you have done the same thing
all the way back to surgery?
12 – OPINION AND ORDER

A. I don’t believe that I could have.
Tr. 40-41.
The ALJ found that Plaintiff’s ability to successfully work for one year up to the hearing
“does not appear to be related to medical improvement, as the claimant testified as to little
improvement since her surgery and the medical record shows ongoing treatment of pain
consisting of chiropractic care, pain medications, and epidural steroid injections.” Tr. 22. This
finding is supported by substantial evidence in the record. Plaintiff testified that although her
symptoms vary, she would not say her condition improved between 2014 and the February 2017
hearing date. Tr. 44. Plaintiff testified the only reason she could perform her current job was
because her employer helps her “with my disability and allow[s] me to get up when I need to get
up and walk when I need to walk and sit when I need to sit.” Tr. 44. But the ALJ specifically
required that any job include a sit/stand option. Tr. 17.
The ALJ provided “specific, clear and convincing reasons” for rejecting Plaintiff’s
testimony. Vasquez v. Astrue, 572, F.3d 586, 591 (9th Cir. 2009) (quoting Smolen v. Charter, 80
F.3d 1273, 1282 (9th Cir. 1996)). Although Plaintiff argues another interpretation of the record is
reasonable, that is not a legitimate reason for overturning the ALJ’s conclusions. Gutierrez, 740
F.3d at 523 (quoting Reddick, 157 F.3d at 720-21) (“If the evidence can reasonably support
either affirming or reversing, ‘the reviewing court may not substitute its judgment’ for that of the
Commissioner.”)).
Plaintiff stated that her condition did not improve between 2014 and 2017. Yet she
successfully performed substantial gainful activity for nearly one year during the time period she
claimed to be disabled. The ALJ pointed out that Plaintiff’s unsuccessful return for six weeks to
a job requiring heavy lifting and constant driving—activities that exacerbated her symptoms—
indicated she was capable of light work with additional limitations accounted for in the RFC; i.e.,
13 – OPINION AND ORDER

providing a sit/stand option in light work with no driving. In making this determination, the ALJ
gave great weight to the surgeon who noted Plaintiff’s improvement and signed off on her return
to light work. Additionally, although Plaintiff continued to complain of severe pain in the three
years following surgery, she also complained of such pain during the time she successfully
performed substantial gainful activity. See Tr. 440 (April 2016 appointment with Dr. Yundt
where Plaintiff complained of “constant pins and needles in the bilateral lower extremities,”
rated her pain as 9/10 and noting she had been through chiropractic care with no improvement);
Tr. 426, 425 (December 2016 chiropractic notes stating Plaintiff “has had an exacerbation. These
are episodic marked deterioration of the patient’s condition due to acute flareups of the
presenting conditions.”); Tr. 424 (July 2016 chiropractic note stating same): Tr. 420 (May 2016
chiropractic note stating same); Tr. 419 (March 2016 chiropractic note stating same).
As noted, the ALJ “may consider a wide range of factors in assessing credibility.”
Ghanim, 2014 WL 4056530, at *7 (9th Cir. Aug. 18, 2014). Here, the ALJ pointed to the fact
that Plaintiff’s surgeon released her to full-time light duty work, that Plaintiff returned to her
prior job with much greater physical requirements, that Plaintiff’s condition generally did not
improve, and that Plaintiff successfully performed substantial gainful activities for nearly a year
in determining Plaintiff was not fully credible as to the extent of her limitations. The ALJ did not
reject all of Plaintiff’s testimony regarding her limitations, but instead determined Plaintiff could
perform light work with a sit/stand option provided she neither drive nor reach overhead. The
ALJ’s determination is supported by substantial evidence in the record.
3. Lay Witness Testimony
Plaintiff argues the ALJ erred in rejecting the lay witness testimony from her husband
and her chiropractor/employer. An ALJ must provide “germane reasons” for rejecting lay

14 – OPINION AND ORDER

testimony. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). The ALJ need not discuss every
witness’s testimony, and “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). Inconsistency with other
evidence in the record is a germane reason for rejecting the testimony of a lay witness. Lewis,
236 F.3d at 511. Further, it is not reversible error to reject lay testimony when “the lay
testimony described the same limitations as [claimant’s] own testimony, and the ALJ’s reasons
for rejecting [claimant’s] testimony apply with equal force to the lay testimony.” Molina, 674
F.3d at 1122.
On February 15, 2017, Plaintiff’s husband submitted a third-party functional report. Tr.
233. The report generally aligned with Plaintiff’s self-reported limitations. To the extent the
report conflicted with the RCF, the ALJ gave the report little weight. Although the ALJ provided
several reasons, she concluded, “Notably, [Plaintiff’s husband] failed to even mention in his
February 2017 [report] that [Plaintiff] was, in fact, working.” Tr. 24. That a third party submits a
report in support of a claim for disability without mentioning that, for nearly an entire year, the
claimant has in fact successfully performed substantial gainful activity qualifies as a germane
reason for giving the report little weight.
On February 21, 2017, Kyle Gillett DC, Plaintiff’s employer and chiropractor signed a
letter outlining his thoughts on Plaintiff’s limitations. Mr. Gillett opined that Plaintiff:
is both a patient of mine and a part-time employee at my chiropractic clinic. She
has worked for me for about one year and works approximately 20 hours a week.
She is an asset to our clinic as she is a very dedicated and hard worker. It is my
professional opinion, however, as both her chiropractor and her employer that she
could not work much more than she is already working at the clinic. She is in pain
a fair amount of the time and some days she comes in and it is evident that she is
in excruciating pain. We have had to work around some of her limitations. The
job is clerical office work and essentially sedentary, but she also spends time
15 – OPINION AND ORDER

standing and walking while working. Her freedom to get up and move around aids
in her ability to deal with the pain. She is very prone to recurrent flare ups of her
back condition. I have often had to provide chiropractic treatments to try and ease
her pain. She has fallen down several times recently. Again, due to her symptoms
it appears that she would not be [able] to sustain more hours of work than she is
already performing.
Tr. 468.
The ALJ gave partial weight to Mr. Gillett’s opinion:
Generally, his statements indicate that the claimant is capable of performing her
current level of work and that she does so successfully. While he feels that the
claimant is unable to work full-time, the claimant’s earnings have been typically
above substantial gainful activity. Moreover, Mr. Gillett is not qualified to
provide vocational opinions. I have accounted to some extent for Mr. Gillett’s
statements by finding that the claimant needs to be able to change positions from
sitting to standing, as needed.
Tr. 23-24.
The ALJ provided germane reasons for rejecting Mr. Gillett’s opinion that Plaintiff could
work no more than 20 hours per week. The ALJ noted that Plaintiff was an asset to the clinic and
a hard worker. Like Mr. Gillett, the ALJ provided Plaintiff with a sit/stand option. As noted, the
ALJ also prohibited Plaintiff from working any job requiring overhead reaching. Taken along
with the ALJ’s reasoning, discussed above, outlining Plaintiff’s ability to sustain substantial
gainful activity despite any medical improvement in her condition, along with Dr. Angeles’s
recommendation releasing Plaintiff to light work following a successful fusion surgery, the ALJ
did not err in rejecting Mr. Gillett’s opinion that Plaintiff could not work more than 20 hours per
week.
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16 – OPINION AND ORDER

CONCLUSION
The ALJ’s decision is free of legal error and supported by substantial evidence. The
Commissioner’s final decision is therefore AFFIRMED.
IT IS SO ORDERED.
DATED this 23rd day of May, 2019.

_______/s/ Michael J. McShane ________
Michael McShane
United States District Judge

17 – OPINION AND ORDER