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
OPINION AND ORDER
COMMISSIONER SOCIAL SECURITY
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
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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).
final decision of
FACTUAL AND PROCEDURAL BACKGROUND
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,
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
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
process for determining whether a person is disabled.
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
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
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
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
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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
significant numbers in the national economy that plaintiff could
However, beginning August 27,
plaintiff's age category changed, there are no jobs that exist in
significant numbers in the national economy that plaintiff can
See 20 C.F.R. §§ 404.1560(c), 404.1566, 416.960(c),
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
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
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the record concerning the same;
improperly discredited her
testimony; (3) failed to give the opinion of Mitchell Sally, M.D.,
to properly consider
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.
§ 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
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
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Plaintiff argues that the ALJ erred in failing to find her
reflexive sympathetic dystrophy
(RSD) knee impairment severe at
In this case, the ALJ attributed plaintiff's alleged
right knee impairment to her well-documented degenerative joint
the right knee,
finding it a
Plaintiff alleges the ALJ additionally should have found her RSD a
severe impairment at Step Two. Plaintiff's argument fails for two
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
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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).
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.
Plaintiff's complaint of right knee pain and its alleged
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,
identify any attendant
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
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
imposed by all medically determinable
impairments in the remaining steps of the decision) .
II. Plaintiff's Credibility
To determine whether
subjective pain or symptoms is credible, an ALJ must perform two
stages of analysis.
20 C.F.R. §§ 404.1529, 416.929.
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.
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.
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2002); Orteza v. Shalala, 50 F. 3d 748, 750
(9th Cir. 1995).
the ALJ may consider when making
the objective medical evidence,
claimant 1 s
the claimant 1 s daily activities,
inconsistencies in testimony, effectiveness or adverse side effects
any pain medication,
relevant character evidence.
Tommasetti, 533 F.3d at 1039.
the hearing, plaintiff
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
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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.
the ALJ concluded
that plaintiff has
expected to produce some symptoms, but that plaintiff's statements
concerning the intensity, persistence, and limiting effects of
those symptoms are not entirely credible.
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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
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
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
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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
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
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
See Chaudry v. As true, 688 F. 3d 661, 671
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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
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,
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
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given her complaints of pain greater weight because Dr. Currie also
noted "plenty" of evidence of degenerative changes and diagnosed
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
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
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
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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
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
On balance, after reviewing the record as a whole,
The ALJ has
activities, such as plaintiff's ability to prepare meals, perform
household chores, read and type on the computer, and go shopping on
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
The remaining reasons supplied by the ALJ for the
adverse credibility determination are supported by substantial
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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.
Carmickle, 533 F.3d at 1162; Batson, 359 F.3d at 1197.
III. Physician's Opinions
the uncontroverted opinion of a
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
Tommasetti, 533 F.3d at 1040.
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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
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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
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
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
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
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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.
the extent that the ALJ rejected Dr. Sally's opinion
because it was not supported by medically acceptable clinical and
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) .
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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
In this case, plaintiff contends that the ALJ inappropriately
discounted the testimony of Rachel Rempel, plaintiff's sister.
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
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
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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
reasons are equally germane
testimony by lay witness); Molina, 674 F.3d at 1117 (same).
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
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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.
reasons stated above,
the Commissioner's final
decision denying benefits to plaintiff is AFFIRMED.
IT IS SO ORDERED.
DATED this ~day of JUNE, 2013.
Malcolm F. Marsh
United States District Judge
24 - OPINION AND ORDER