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Case 3:12-cv-00679-MA Document 25 Filed 07/10/13 Page 1 of 24 Page ID#: 555

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SUSANNA M. VEACH,

Case No. 3:12-cv-00679-MA

Plaintiff,

OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

Defendant.

SARA L. GABIN
14523 Westlake Drive
Lake Oswego, OR 97035-7700

Attorney for Plaintiff

S. AMANDA MARSHALL
United States Attorney
District of Oregon
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902

L. JAMALA EDWARDS
Special Assistant United States Attorney
Office of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98105-7075

Attorneys for Defendant

1 - OPINION AND ORDER

Case 3:12-cv-00679-MA Document 25 Filed 07/10/13 Page 2 of 24 Page ID#: 556

MARSH, Judge

Plaintiff Susanna M. Veach brings this action for judicial

review of a final decision of the Commissioner of Social Security

denying her applications for disability insurance benefits (DIB)

under Title II of the Social Security Act, 42 U.S.C §§ 401-403, and

Supplemental Security Income (SSI) disability benefits under Title

XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383£. This

Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

For the

reasons

that

follow,

I

affirm

the

final decision of

the

Commissioner.

FACTUAL AND PROCEDURAL BACKGROUND

On

January

14,

2008,

plaintiff protectively

filed

applications for a period of disability and disability benefits,

and supplemental security income.

In both applications, plaintiff

alleges disability beginning October 18, 2006, due to right knee

degenerative joint disease or reflexive sympathetic dystrophy,

cervical degenerative disc disease, nerve palsy with associated

vision problems, Asperger's Syndrome, seasonal affective disorder,

and hypertension.

The claims were initially denied on June 4,

2008, and on reconsideration on September 9, 2008. Plaintiff filed

a request for a hearing before an administrative law judge (ALJ).

An ALJ held a video hearing on August 19, 2010, over which the ALJ

presided in Eugene, .Oregon. Plaintiff appeared with her attorney

2 - OPINION AND ORDER

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and testified in Salem, Oregon.

A vocational expert, Mark A.

McGowan appeared and testified in Eugene, Oregon.

On September 16, 2010, the ALJ issued a partially favorable

decision, finding plaintiff was not disabled prior to August 27,

2009, but became disabled on that date pursuant to the medical-

vocational guidelines. Contending the ALJ acted arbitrarily in

finding plaintiff disabled only as of August 27, 2009, plaintiff

sought Appeals Council

review.

The Appeals Council denied

plaintiff's request for review on May 13, 2010, and therefore, the

ALJ's decision became the final decision of the Commissioner for

purposes of review.

Plaintiff was 55 years old as of the date of the hearing, and

56 on the date of the ALJ's decision. Plaintiff has a high school

diploma and has attended three years of college. Plaintiff ha~

past relevant work as an in-home care attendant, security guard,

pizza maker, and counter attendant in a cafeteria.

THE ALJ'S DISABILITY ANALYSIS

The Commissioner has established a

five-step sequential

process for determining whether a person is disabled.

Bowen v.

Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. Each step

is potentially dispositive. The claimant bears the burden of proof

at steps one through four.

See Valentine v. Comm' r Soc. Sec.

Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180

F. 3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts

3 - OPINION AND ORDER

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to the Commissioner to show that the claimant can do other work

which exists in the national economy. Andrews v. Shalala, 53 F.3d

1035, 1043 (9th Cir. 1995).

The ALJ concluded that plaintiff met

the

insured status

requirements of the Social Security Act through March 31, 2012. A

claimant seeking DIB benefits under Title II must establish

disability on or prior to the last date insured.

42 u.s.c. §

416(I) (3); Burch v. Barnhart, 400 F. 3d 676, 679 (9th Cir. 2005).

At step one, the ALJ found that plaintiff has not engaged in

substantial gainful activity since her alleged onset of disability.

See 20 C.F.R. §§ 404.1571 et seq., 416.971 et seq.

At step two, the ALJ found that plaintiff had the following

severe impairments:

cervical spine degenerative disc disease,

degenerative joint disease of the right knee, obesity, and hearing

loss. See 20 C.F.R. §§ 404.1520(c), 416.920(c).

At step three, the ALJ found that plaintiff's impairments, or

combination of impairments did not meet or medically equal a listed

impairment.

See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925, 416.926.

The ALJ assessed plaintiff with a residual functional capacity

(RFC) to perform light work as defined in 20 C.F.R. §§ 404.1567(b)

and 416. 967 (b), except that plaintiff can occasionally climb,

kneel, crouch, and crawl, can occasionally reach overhead due to

cervical spine disease, and should avoid concentrated noise

4 - OPINION AND ORDER

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exposure. See 20 C.F.R. §§ 404.1527, 404.1529, 416.927, 416.929.

At step four, the ALJ found plaintiff unable to perform any

past relevant work. See 20 C.F.R. §§ 404.1565, 416.965.

The ALJ noted that prior to plaintiff's established disability

onset date, plaintiff was an

individual closely approaching

advanced age, but that plaintiff's age category changed as of

August 27, 2009, her 55th birthday. On that date, plaintiff's age

category changed to an individual of advanced age.

At step five, the ALJ concluded that prior to plaintiff's age

category change, considering plaintiff's age, education, 1vork

experience,

and residual

functional capacity,

jobs exist

in

significant numbers in the national economy that plaintiff could

have performed.

However, beginning August 27,

2009, after

plaintiff's age category changed, there are no jobs that exist in

significant numbers in the national economy that plaintiff can

perform.

See 20 C.F.R. §§ 404.1560(c), 404.1566, 416.960(c),

416.966.

Accordingly, the ALJ concluded that plaintiff was not

disabled prior to August 27, 2009, but became disabled on· that

date, and has continued to be disabled through the date of the

ALJ's decision.

ISSUES ON REVIEW

On appeal to this court, plaintiff contends the ALJ committed

the following errors: (1) failed to find her reflexive sympathetic

dystrophy knee impairment severe at Step Two, and failed to develop

5 - OPINION AND ORDER

Case 3:12-cv-00679-MA Document 25 Filed 07/10/13 Page 6 of 24 Page ID#: 560

the record concerning the same;

(2)

improperly discredited her

testimony; (3) failed to give the opinion of Mitchell Sally, M.D.,

controlling weight;

(4)

failed

to properly consider

the

lay

testimony of Rachel Rempel, plaintiff's sister; and (5) failed to

include all of plaintiff's limitations in the RFC, resulting in a

defective hypothetical to the VE.

STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if

the Commissioner applied proper legal standards and the findings

are supported by substantial evidence in the record.

42 u.s.c.

§ 405(g); Andrews, 53 F.3d at 1039.

ftSubstantial evidence means

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."

Id.; Valentine, 57 4 F. 3d at

690. The court must weigh all the evidence, whether it supports or

detracts from the Commissioner's decision. Martinez v. Heckler,

807 F. 2d 771, 772 (9th Cir. 1986).

The Commissioner's decision

must be upheld, even if the evidence is susceptible to more than

one rational interpretation. Batson v. Comm'r of Soc. Security

Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews, 53 F.3d at

1039-40.

If the evidence supports the Commissioner's conclusion,

the Commissioner must be affirmed; ftthe court may not substitute

its judgment for that of the Commissioner." Edlund v. Massanari,

253 F.3d 1152, 1156 (9th Cir. 2001); Batson, 359 F.3d at 1193.

6 - OPINION AND ORDER

Case 3:12-cv-00679-MA Document 25 Filed 07/10/13 Page 7 of 24 Page ID#: 561

I.

Step Two

DISCUSSION

Plaintiff argues that the ALJ erred in failing to find her

reflexive sympathetic dystrophy

(RSD) knee impairment severe at

Step Two.

In this case, the ALJ attributed plaintiff's alleged

right knee impairment to her well-documented degenerative joint

disease of

the right knee,

finding it a

severe

impairment.

Plaintiff alleges the ALJ additionally should have found her RSD a

severe impairment at Step Two. Plaintiff's argument fails for two

reasons.

First, the Step Two threshold is low. At Step Two, the ALJ

must determine whether a claimant has one or more impairments that

significantly limit his or her ability to conduct basic work

activities. Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir.

2005); 20 C.F.R. §§ 416.920(c), 416.921.

In this case, the ALJ

resolved Step Two in plaintiff's favor, concluding that plaintiff

had demonstrated impairments

(degenerative disc disease of the

cervical spine, degenerative joint disease of the right knee,

obesity, and hearing loss) necessary to satisfy Step Two. The ALJ

continued the sequential decision-making process until reaching a

determination at Step Five.

Any error in failing to consider

plaintiff's RSD as severe did not prejudice her at Step Two, as

Step Two was resolved in her favor. Lewis v. Astrue, 498 F.3d 909,

911 (9th Cir. 2007) (any failure to list bursitis as severe at Step

7 - OPINION AND ORDER

Case 3:12-cv-00679-MA Document 25 Filed 07/10/13 Page 8 of 24 Page ID#: 562

Two was harmless error where ALJ considered functional limitations

of bursitis at step four); Burch, 400 F. 3d at 682

(any error in

omitting obesity from list of severe impairments at Step Two was

harmless because Step" Two \vas resolved in claimant's favor).

Second,

I reject plaintiff's argument that the record was

inadequate for a determination as to her right knee impairment.

See Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001) (the ALJ's

"duty to further develop the record is triggered only when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence.").

In plaintiff's reply, she

acknowledges that her treating physician, Jeremy Swindle, M.D., did

not definitively diagnose RSD, but instead suspected RSD elements

may be present.

According to plaintiff,

the ALJ should have

developed the record further in order to definitively diagnose RSD.

I disagree.

Plaintiff's complaint of right knee pain and its alleged

functional

limitations were considered by

the ALJ when he

determined her degenerative joint disease of the right knee was

severe at Step Two and when determining plaintiff's RFC. Moreover,

plaintiff has

failed

to

identify any attendant

functional

limitations specific to RSD that were not considered in the ALJ's

discussion of her right knee degenerative joint disease. Thus, the

record was not inadequate for the ALJ to make a decision at Step

Two.

To the extent that plaintiff contends the ALJ failed to

8 - OPINION AND ORDER

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properly evaluate the medical evidence or her alleged right knee

impairment, I address those issues below. See 20 C.F.R. § 416.923

(once a claimant has surmounted Step Two, the ALJ must consider the

functional

limitations

imposed by all medically determinable

impairments in the remaining steps of the decision) .

II. Plaintiff's Credibility

To determine whether

a

claimant's

testimony

regarding

subjective pain or symptoms is credible, an ALJ must perform two

stages of analysis.

20 C.F.R. §§ 404.1529, 416.929.

The first

stage is a

threshold test in which the claimant must produce

objective medical evidence of an underlying impairment that could

reasonably be expected to produce the symptoms alleged. Tommasetti

v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Smolen v. Chater,

80 F. 3d 1273, 1282 (9th Cir. 1996). At the second stage of the

credibility analysis, absent affirmative evidence of malingering,

the ALJ must provide clear and convincing reasons for discrediting

the claimant's testimony regarding the severity of the symptoms.

Carmickle v. Comm'r Soc. Security Admin., 533 F.3d 1155, 1166 (9th

Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.

2007) .

The ALJ must make findings that are sufficiently specific to

permit the reviewing court to conclude that the ALJ did not

arbitrarily discredit the claimant's testimony. Tommasetti, 533

F.3d at 1039;

Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.

9 - OPINION AND ORDER

Case 3:12-cv-00679-MA Document 25 Filed 07/10/13 Page 10 of 24 Page ID#: 564

2002); Orteza v. Shalala, 50 F. 3d 748, 750

(9th Cir. 1995).

Factors

the ALJ may consider when making

such credibility

determinations

include

the objective medical evidence,

the

claimant 1 s

treatment history,

the claimant 1 s daily activities,

inconsistencies in testimony, effectiveness or adverse side effects

of

any pain medication,

and

relevant character evidence.

Tommasetti, 533 F.3d at 1039.

At

the hearing, plaintiff

testified

that

she

began

experiencing chronic knee pain following an injury she received

when walking home from work. Plaintiff testified that the pain

increases with overuse, such as walking, lifting heavy objects, and

turning. Tr. 57. Plaintiff described her pain as typically a four

on a 10-point scale, and that two or three times a week, the pain

increases to a seven. Tr. 57. Plaintiff testified that her right

knee will give out occasionally, and that she uses canes or

crutches for assistance when walking. Plaintiff described neck

pain due to impingement in her cervical spine that causes pain and

numbness when turning her head to look at a computer screen.

Plaintiff described that she could stand in one place for 30

minutes only three times a day due to pain. Tr. 57. Plaintiff

stated that she can walk for half a mile before being in pain.

Plaintiff described that on a good day, she can walk two miles in

one hour, but on a bad day, it will take her up to an hour and 45

minutes. Plaintiff testified that she can sit for 30 minutes, then

10 - OPINION AND ORDER

Case 3:12-cv-00679-MA Document 25 Filed 07/10/13 Page 11 of 24 Page ID#: 565

needs to change positions due to pain. Plaintiff stated that she

needs to lie down after four to six hours of being active, even

when she takes her pain medication and that on a good day, she will

lie down for two hours; on a bad day, she will lie down for six

hours. Plaintiff further testified that she can sit in a recliner

for two to three hours. Tr. 60. Plaintiff stated that she could

lift 15 to 20 pounds, and could carry 10 to 15 pounds. Tr. 63.

In a March 6, 2008 Function Report, plaintiff described that

because of her impairments, she can no longer drive, work, serve

customers, or perform housekeeping. Tr. 201. Plaintiff noted that

she has difficulty showering and reaching her feet, but otherwise

does not have trouble with self-care. Plaintiff stated she is able

to make simple meals, perform household chores, and mow the lawn

with frequent breaks. Plaintiff described that she is able to

shop, and buys a little at a

time to be able

to carry it.

Plaintiff noted she is able to read or work on the computer for 45

minutes at a time.

In a pain questionnaire, plaintiff described

aching, burning and tingling in her neck, hands, knees, and right

leg that occurs with overuse.

In

the decision,

the ALJ concluded

that plaintiff has

medically determinable

impairments

that could

reasonably be

expected to produce some symptoms, but that plaintiff's statements

concerning the intensity, persistence, and limiting effects of

those symptoms are not entirely credible.

11 - OPINION AND ORDER

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Plaintiff complains that the ALJ erroneously determined that

she is not credible citing the ALJ's boilerplate language which

provides "the claimant's ... statements concerning the intensity,

persistence and limiting effects of these symptoms are not credible

to

the extent

they are

inconsistent with

the above residual

functional capacity assessment." According to plaintiff, the ALJ' s

credibility determination reverses the proper order in which the

ALJ is to evaluate her credibility.

While it is true that an ALJ may not provide an RFC and then

conclude, without more, that the claimant is credible only to the

extent that the testimony is consistent with the RFC. However,

"[t] here is nothing wrong with an ALJ stating a conclusion and then

explaining it, as opposed to providing [an) explanation and then

reaching a conclusion." Bostic v. Astrue, 2012 WL 786909, at *l

(D. Or. Mar. 9, 2012) (citing Black v. Astrue, 2011 WL 6130534, at

*6 (D. Or. Dec. 7, 2011)).

"In other words, the ALJ does not err

simply by noting that a claimant's testimony is not credible to the

extent it is inconsistent with the RFC where that conclusion is

followed by sufficient reasoning." Cruise v. Astrue, 2012 WL

5037257, *3 (D. Or. Sept. 29, 2012), adopted, 2012 WL 4966462

(D.

Or. Oct. 17, 2012).

In this case, the ALJ has not engaged in "improper sequencing"

as alleged by plaintiff. The ALJ detailed numerous reasons for the

adverse credibility finding. Accordingly,

I examine the ALJ's

12 - OPINION AND ORDER

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reasoning to determine whether it is supported by substantial

evidence and free of legal error.

The ALJ discounted plaintiff's credibility based on her

inconsistent statements of knee pain. At the start of the hearing,

plaintiff testified that her pain averaged a four on a 10-point

scale, and sometimes spiked to a seven a couple of times a week.

Tr. 56-57. However, later on, plaintiff testified that with her

nortriptyline, her knee pain is at a one to three on a 10-point

scale. Tr. 65. At the hearing, the ALJ questioned why plaintiff

was seeking disability if the pain medication was so effective.

Plaintiff responded that she sometimes forgets to take her pain

medications because she is disorganized. Tr. 66.

In the decision,

the ALJ also discussed that during a May 14, 2008, psychodiagnostic

evaluation with PaulS. Stoltzfus, Psy. D., plaintiff reported that

her pain medication is "very effective," and that when she takes

her nortriptyline, she experiences "no pain" and only very minor

tingling in her shin. Tr. 295.

The ALJ's findings are wholly

supported in the record. Thus, the ALJ could reasonably discount

plaintiff's credibility based on her inconsistent allegations of

disabling pain.

See Tommasetti, 533 F.3d at 1040 (plaintiff's

credibility can be discounted where medical evidence demonstrated

favorable response to medications and conservative treatment).

The ALJ detailed numerous other inconsistencies in the record.

For example, the ALJ discussed that plaintiff alleged she could not

13 - OPINION AND ORDER

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return to her previous job providing in-home tutoring because it

involved a lot of walking, carrying, and working with supplies, and

that she would have difficulty carrying her purse. The ALJ found

this inconsistent with plaintiff's later hearing testimony that she

could carry 15 to 20 pounds a distance of 12 to 15 feet, and could

safely carry 10 to 15 pounds. Tr. 28, 62-63.

The ALJ also described several

inconsistencies between

plaintiff's description of debilitating symptoms at the hearing and

the medical evidence. When the claimant's own medical record

undercuts her assertions, the ALJ may rely on that contradiction to

discredit the claimant. Parra v. Astrue, 481 F.3d 742, 750-51 (9th

Cir. 2007); Morgan v. Comm'r Soc. Security Admin., 169 F.3d 595,

600 (9th Cir. 1999). As the ALJ discussed, plaintiff appeared for

an examination with Mitchell Sally, M.D., a state agency examining

physician, in a wheelchair. As the ALJ noted, Dr. Sally found that

the wheelchair was not medically necessary because plaintiff could

walk easily in the exam room, and easily transferred from the

wheelchair to the exam table.

Indeed, a review of plaintiff's

medical records from her treating physician, Dr. Swindle reveals

that he prescribed a brace, not a wheelchair, for her alleged knee

instability. Tr. 249.

I conclude that the ALJ's determination

that the medical evidence undermined plaintiff's allegations about

the severity of her knee impairment is supported by substantial

evidence.

See Chaudry v. As true, 688 F. 3d 661, 671

(9th Cir.

14 - OPINION AND ORDER

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2012) (ALJ properly discounted plaintiff's credibility based on non(cid:173)

prescribed use of wheelchair) .

The ALJ also appropriately discounted plaintiff's credibility

on

the basis that her alleged depression prevented her from

working. As the ALJ discussed when evaluating the medical evidence

at Step Two, plaintiff's depression is stable on medications, and

Dr. Stoltzfus determined that plaintiff did not meet the medical

criteria for depression,

a

finding

that plaintiff does not

challenge. Tr. 297-98. Because the ALJ's findings are supported

by substantial evidence in the record, the ALJ could reasonably

determine that the severity of plaintiff's alleged impairments were

not supported by the objective medical record. Molina v. Astrue,

674 ~.3d 1104, 1113 (9th Cir. 2012) (upholding adverse credibility

determination where ALJ found that plaintiff's allegations of a

severe anxiety disorder were not supported by objective medical

evidence or plaintiff's behavior during examination).

Plaintiff argues that the ALJ inappropriately discounted her

credibility based on the medical evidence of Stuart J. Currie, M.D.

Plaintiff sought treatment from Dr. Currie once on ~ebruary 20,

2007, for knee pain and difficulty walking. Dr. Currie reviewed

the results of an MRI conducted on ~ebruary 14, 2007. As the ALJ

discussed, Dr. Currie noted that plaintiff's MRI displayed a "lack

of serious findingsd and gave plaintiff a steroid injection and a

one-day work release. Plaintiff argues that the ALJ should have

15 - OPINION AND ORDER

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given her complaints of pain greater weight because Dr. Currie also

noted "plenty" of evidence of degenerative changes and diagnosed

osteoarthritis.

I conclude that the ALJ accurately summarized Dr. Currie's

findings. The ALJ could reasonably interpret Dr. Currie's one-day

work release as further support for the interpretation that the MRI

did not reveal serious findings. Moreover, Dr. Swindle repeatedly

referred to plaintiff's knee MRI results as "normal" or "normal

with arthritis." Tr. 339, 348, 350, 359.

Even if Dr. Currie's

records could be interpreted differently, the ALJ's interpretation

is a reasonable one, and this court may not engage in second(cid:173)

guessing. Parra, 481 F.3d at 746.

Additionally, the ALJ found that plaintiff's activities of

daily living are inconsistent with the level of disability she is

alleging.

An ALJ may consider inconsistencies in a claimant's

testimony or between the testimony and a claimant's activities when

assessing credibility. Molina, 674 F.3d at 1113; Berry v. Astrue,

622 F.3d 1228, 1235 (9th Cir. 2010) (inconsistencies between self(cid:173)

reported symptoms and activities supported adverse credibility

determination) .

The ALJ discussed that plaintiff testified that she cannot

walk or stand for four hours in a day, that it takes her two hours

to walk two miles and that she needs to take many breaks. However,

the ALJ noted that in plaintiff's function report, she described

16 - OPINION AND ORDER

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extensive daily activities, such as

reading, doing household

chores, preparing meals, and mowing the lawn.

The ALJ found this

inconsistent with plaintiff's testimony that she regularly walks to

the library.

Plaintiff contends that her statements are not contradictory

because she testified that she takes breaks every 30 minutes when

doing chores, that she uses canes as support >vhen walking, and that

although she can walk two to three miles, her knee hurts after just

a half mile. However, as the ALJ noted, plaintiff inconsistently

reported that she can be active for seven hours before needing to

rest.

On balance, after reviewing the record as a whole,

I

conclude

that

the ALJ

rationally

interpreted

the evidence.

Carmickle,

533

F.3d at

1165.

The ALJ has

cited numerous

activities, such as plaintiff's ability to prepare meals, perform

household chores, read and type on the computer, and go shopping on

a

regular basis, which

indicate that plaintiff had a greater

functional capacity than she alleged.

See Rollins v. Massanari,

261 F. 3d 853, 857 (9th Cir. 2001) (ALJ may reject the claimant's

testimony when inconsistent with the claimant's daily activities

and contrary to the medical evidence) .

I further conclude that even if the ALJ erred in discrediting

plaintiff based on her activities of daily living, any such error

is harmless.

The remaining reasons supplied by the ALJ for the

adverse credibility determination are supported by substantial

17 - OPINION AND ORDER

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evidence in the record.

Because those remaining reasons, when

taken together, still amount to clear and convincing evidence, the

ALJ's adverse credibility determination must be sustained.

See

Carmickle, 533 F.3d at 1162; Batson, 359 F.3d at 1197.

III. Physician's Opinions

To

reject

the uncontroverted opinion of a

treating or

examining physician,

the ALJ must present clear and convincing

reasons for doing so. Bayliss v. Barnhart, 427 F.3d 1211, 1216

(9th Cir. 2005); Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir.

1989). If a treating or examining doctor's opinion is contradicted

by another doctor's opinion, it may be rejected by specific and

legitimate reasons. Bayliss, 427 F.3d at 1216. An ALJ can meet

this burden by providing a detailed summary of the facts and

conflicting medical evidence, stating his own interpretation of

that evidence, and making findings. Tommasetti, 533 F.3d at 1041;

Carmickle, 533 F. 3d at 1164; Magallanes v. Bowen, 881 F.2d 747, 751

(9th Cir. 1989). When evaluating conflicting opinions, an ALJ is

not required to accept an opinion that is not supported by clinical

findings, or is brief or conclusory. Bray v. Comm'r of Soc. Sec.

Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); Magallanes, 881 F.2d

at 7 51. An ALJ also may discount a physician's opinion that is

based

on

a

claimant's discredited

subjective

complaints.

Tommasetti, 533 F.3d at 1040.

18 - OPINION AND ORDER

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Plaintiff argues that the ALJ erred in failing to adopt the

opinion of Dr. Sally, an examining physician. On May 10, 2008, Dr.

Sally reviewed plaintiff's medical records, interviewed plaintiff,

and conducted a brief physical examination. Dr. Sally opined that

plaintiff could be expected to stand and walk for four hours in an

eight hour day, with rests, could sit for eight hours, found no

postural or environmental restrictions, and did not quantify her

lifting restrictions. Dr. Sally also found that plaintiff did not

need to be in a wheelchair, despite that plaintiff appeared in one

for the examination. Plaintiff informed Dr. Sally that she had

been advised to "stay off her knee."

Dr. Sally noted that

plaintiff favored her right leg, but could move about the exam room

easily, with a slightly abnormal gait and transferred from the

wheelchair to the exam table easily. Tr. 29, 288.

The ALJ gave Dr. Sally's opinion little weight, finding the

limitations he described unsupported by objective evidence in the

record. The ALJ also noted that Dr. Sally's opinion that plaintiff

could stand and walk for four hours inconsistent with plaintiff's

activities of daily living, and was unsupported by medically

acceptable clinical and diagnostic techniques.

Dr. Sally's opinion was contradicted by plaintiff's treating

physician, Dr. Swindle, who advised plaintiff not to file for

disability before maximizing medication options or other orthopedic

interventions. Tr. 360. Notably, plaintiff does not challenge the

19 - OPINION AND ORDER

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ALJ's analysis of Dr. Swindle's opinion. Dr. Sally's opinion also

was contradicted by the opinions of the state reviewing physicians,

Martin B. Lahr, M.D.,

and Linda L.

Jensen, M.D., who

found

plaintiff could stand and walk for six hours. Tr. 305, 329. Thus,

the ALJ was required to provide specific and legitimate reasons for

discounting Dr. Sally's opinion. Tommasetti, 533 F.3d at 1041.

The ALJ could discount Dr. Sally's opinion because it was

inconsistent with the medical evidence in the record. The ALJ's

findings are wholly supported by substantial evidence in the

record.

The ALJ provided a detailed review of all the medical

evidence of record.

For example, the ALJ discussed that in June 2007, plaintiff

sought emergency room treatment for knee pain after falling down on

her walk home from work. Plaintiff walked to the hospital, and

described that she had fallen four days earlier. When

the

emergency room doctor met with her, she described her pain at a one

on a 10-point scale. As the ALJ discussed, when plaintiff returned

to the hospital six days later, she could bear weight on her knee,

walked without a limp, had full range of motion, and reported knee

pain only when bumped. The ALJ's

findings are supported by

substantial evidence in the record.

And, the ALJ discussed that plaintiff reported to Dr. Swindle

on several occasions that her knee pain was significantly improved

with nortriptyline, and

that Dr. Swindle did not feel

that

20 - OPINION AND ORDER

Case 3:12-cv-00679-MA Document 25 Filed 07/10/13 Page 21 of 24 Page ID#: 575

disability was appropriate until after other medication and

orthopedic interventions had been exhausted. The ALJ also noted

that plaintiff reported to Dr. Stoltzfus that she experiences no

knee pain with nortriptyline. Moreover, as discussed above, Dr.

Currie and Dr. Swindle noted the lack of serious findings with

respect to her degenerative joint disease. And, as the ALJ noted,

plaintiff consistently demonstrated a full range of motion in the

right knee. Thus, I conclude the ALJ cited specific and legitimate

reasons for discounting the opinion Dr. Sally.

To

the extent that the ALJ rejected Dr. Sally's opinion

because it was not supported by medically acceptable clinical and

diagnostic techniques,

the ALJ' s decision is not supported by

substantial evidence in the record. A review of Dr. Sally's report

indicates that he performed several objective tests, such as the

Romberg test, range of motion tests, leg raises, grip strength

tests, and others, during his examination of plaintiff. However,

any such error is harmless. As noted above, the inconsistency with

the medical evidence alone is a specific and legitimate reason for

discounting the opinion of Dr. Sally. See Molina, 674 F.3d 1117

(court will not reverse for errors that are "'inconsequential to

the ultimate nondisability determination.'") (quoting Carmickle, 533

F. 3d at 1162) .

/Ill

Ill/

21 - OPINION AND ORDER

Case 3:12-cv-00679-MA Document 25 Filed 07/10/13 Page 22 of 24 Page ID#: 576

III. Lay Testimony.

Lay witness testimony as to a claimant's symptoms or how an

impairment affects his ability to work is competent evidence, which

the ALJ must take into account. Stout v. Commissioner, Soc. Sec.

Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); Nguyen v. Chater, 100

F.3d 1462, 1467 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915,

919 (9th Cir. 1993). The ALJ is required to account for competent

lay witness testimony, and if he rejects it, to provide germane

reasons for doing so. Valentine, 574 F.3d at 694; Dodrill, 12 F.3d

at 919.

In this case, plaintiff contends that the ALJ inappropriately

discounted the testimony of Rachel Rempel, plaintiff's sister.

In

her opening brief, plaintiff acknowledged that Ms. Rempel's

testimony described symptoms and limitations nearly identical those

endorsed by plaintiff.

In her reply brief, plaintiff complains

that the ALJ was not free to reject Ms. Rempel's testimony that was

distinct from plaintiff's.

In the decision, the ALJ rejected Ms. Rempel's testimony in

the

same

rationale when

rejecting plaintiff's

subjective

complaints. The ALJ also stated that Ms. Rempel indicated that she

was unsure of what plaintiff did on a daily basis, and the ALJ

noted the Ms. Rempel shops regularly with plaintiff, and thus the

ALJ implicitly rejected Ms. Rempel's testimony on that basis as

well.

22 - OPINION AND ORDER

Case 3:12-cv-00679-MA Document 25 Filed 07/10/13 Page 23 of 24 Page ID#: 577

To the extent that the ALJ erred in failing to separately

explain his rationale for rejecting Ms. Rempel's testimony, any

such error is harmless. Molina, 674 F.3d at 1115. With respect

to the allegedly "distinct observations" made by Ms. Rempel that

plaintiff takes twice as long to complete tasks, has difficultly

exiting the bathtub, does not get down on the floor, suffers leg

instability, and was fired or laid off for not getting along with

others, I conclude that her lay testimony is substantially similar

to plaintiff's subjective complaints. Compare Tr. 213-218 with

Tr. 200-08. Thus, in light of my conclusion that the ALJ provided

clear and convincing reasons for rejecting plaintiff's subjective

complaints, and that Ms. Rempel's testimony is similar to those

complaints, it follows that the ALJ gave germane reasons for

discounting her testimony. Valentine, 574 F.3d at 694 (where ALJ

has provided clear and convincing reasons for rejecting plaintiff's

testimony,

those

reasons are equally germane

to similar

to

testimony by lay witness); Molina, 674 F.3d at 1117 (same).

V.

VE Testimony

As discussed above, I have concluded that the ALJ did not err

in the fashioning of plaintiff's RFC. Because the hypothetical

posed to the VE included all of those limitations which the ALJ

deemed to be credible and consistent with the medical evidence, the

ALJ could reasonably rely upon

the VE' s

testimony.

Stubbs-

23 - OPINION AND ORDER

Case 3:12-cv-00679-MA Document 25 Filed 07/10/13 Page 24 of 24 Page ID#: 578

Danielson, 539 F.3d 1169, 1175-76 (9th Cir. 2008); Valentine, 574

F. 3d at 694.

CONCLUSION

For

the

reasons stated above,

the Commissioner's final

decision denying benefits to plaintiff is AFFIRMED.

This action

is DISMISSED.

IT IS SO ORDERED.

DATED this ~day of JUNE, 2013.

~~-7-f?r~

Malcolm F. Marsh
United States District Judge

24 - OPINION AND ORDER