Guy v. Commissioner Social Security Admin., No. 1:2013cv00139 - Document 25 (D. Or. 2014)
Court Description: OPINION AND ORDER. For the foregoing reasons, the decision of the ALJ is AFFIRMED. IT IS SO ORDERED. Signed on 04/02/2014 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON 1:13-cv-00139-MA RODNEY M. GUY, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. MARLENE R. YESQUEN Black, Chapman, Webber & Stevens 221 Stewart Avenue, #209 Medford, Oregon 97501 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 NICOLE A. JABAILY Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104 Attorneys for Defendant 1 - OPINION AND ORDER OPINION AND ORDER MARSH, Judge Plaintiff, Rodney M. Guy, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner ) denying his for application supplemental security income (SSI) disability benefits under Title XVI of the Social Security Act (the Act). See 42 U.S.C. §§ court has jurisdiction pursuant to 42 U.S.C. reasons forth set below, I affirm the § final 1381-1383f. This 405(g). For the decision of the Commissioner . PROCEDURAL BACKGROUND Plaintiff protectively filed the instant application for SSI on February 9, brain injury, 2009 alleging disability due to ft[p]ost traumatic hip problems." Tr. 158. denied initially and upon reconsiderati on. Judge (ALJ) Plaintiff's claim was An Administrativ e Law presided over a hearing on June 17, 2011, Plaintiff was represented by counsel and testified. at which Vocational Expert (VE) Frank Lucas was also present throughout the hearing and testified. On July 18, 2011, the ALJ issued a decision denying The Appeals Council declined review, and Plaintiff's application. Plaintiff timely appealed. FACTUAL BACKGROUND Born on July 24, 1972, Plaintiff was 38 years old on the alleged onset date of disability and 39 years old on the date of 2 - OPINION AND ORDER Plaintiff has the hearing. high school education with some a college and has past relevant work as a Construction Laborer, Fire Crew Member, and Maintenance Engineer. Tr; 28, 44-45, 163. Plaintiff alleges his conditions became disabling on July 24, 1976. 1 Plaintiff testified about his limitations at the Tr. 139. Tr. 172-79. hearing and submitted an Adult Function Report. Baxted, Kate a friend of Plaintiff's and social service coordinator, testified at the hearing on Plaintiff's behalf and submitted a Third Party Function Report. Edwin E. Pearson, Tr. 181-88. Ph. D. conducted I Psychodiagnostic a Assessment and submitted an evaluative opinion in relation to a prior Tr. application. disability Christopher 304-08. Komanapalli, M.D., submitted an evaluation of Plaintiff's physical Tr. 311-15. capabilities in relation to the prior application. 15, April 2009, Psychological Thomas Evaluation Shields, Brent for purposes Ph. D. of I conducted assessing On a whether Plaintiff has any learning disorders that required accommodation in his college courses. Villanueva, Psy. D., Tr. 317-21. On April 24, 2009, Michael R. a comprehensive psychodiagnostic conducted examination and submitted an opinion in relation to the.instant 1 Plaintiff initially listed his alleged onset date as July At the hearing, however, Plaintiff moved to amend the 1976. 24, The ALJ granted Tr. 40. onset date to January 29, 2010. Plaintiff's motion, but for reasons that are unclear listed July Plaintiff does not 24, 1976 as the onset date in the decision. raise this as error. 3 - OPINION AND ORDER application for SSI. Tr. 322-26. Yin Kan Hwee, M.D., conducted a physical examination on April 25, 2009 in relation to the instant disability application and submitted an evaluative opinion. Tr. primary care 329-33. submitted providers, Questionnaire. F.N.P., Orr, Megan a Physical Plaintiff's of one Capacity Functional Residual Guenther Knoblich, M.D., Plaintiff's Tr. 372-76. treating orthopedist, also submitted a Physical Residual Functional Capacity Questionnaire. Tr. 403-07. Finally, on March 29, 2011, Dr. Pearson conducted a Neuropsychological Screening and submitted another evaluative opinion, as well as a Medical Source Statement of Ability to do Work-Related Activities (mental). Tr. 439-49. THE ALJ'S DISABILITY ANALYSIS The Commissioner established has a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § Bowen v. 416.920(a) (4) (i)- Each step is potentially dispositive. The claimant bears the burden of proof at Steps One through Four. Tackett v. Apfel, 180 (v) . F.3d 1094, 1098 (9th Cir. 1999). The burden shifts to the Commissioner at Step Five to show that a significant number of jobs exist in the national economy that the claimant can perform. See Yuckert, 482 U.S. at 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined Plaintiff has not engaged in substantial gainful activity since the application date, February 9, 2009. See 20· C.F.R. 4 - OPINION AND ORDER §§ 416.971 et seq.; Tr. 22. At Step Two, osteoarthritis, the ALJ determined disorder, cognitive Plaintiff's learning right disorder, polysubstance abuse in remission are severe impairments. hip and See 20 C.F.R. § 416.920(c); Tr. 22. At Step Three, the ALJ determined Plaintiff does not have an impairment or combination of impairments that meet or medically equal any listed impairment. See 20 C.F.R. §§ 416.920(d), 416.925, 416.926; Tr. 23-24. The ALJ found Plaintiff has the residual functional capacity (RFC) to perform a range of sedentary work, except that Plaintiff can do no more than two hours of standing or walking and no more than six hours of sitting in an 8-hour workday with normal breaks; can occasionally lift up to 20 pounds and frequently lift up to 10 pounds; can frequently balance, but only occasionally climb, stoop, kneel, crouch, or crawl; and is limited to simple, unskilled work, which the ALJ defined at the hearing as routine, repetitive tasks with simple instructions. Tr. 24-28, 89. At Step Four, the ALJ found Plaintiff cannot perform his past relevant work as a Construction Laborer, Maintenance Engineer. Fire Crew Member, and See 20 C.F.R. § 416.965; Tr. 28. At Step Five, however, the ALJ found jobs exist in significant numbers in the national economy that Plaintiff including Bench Hand, Toy Stuffer, and Table Worker. §§ 416.969, 416.969(a); Tr. 29. 5 - OPINION AND ORDER can perform, See 20 C.F.R. Accordingly, the ALJ found Plaintiff was not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff raises Plaintinff argues three primary issues on First, review. the ALJ improperly discounted his testimony. Second, Plaintiff maintains the ALJ improperly weighed the medical discrediting the opinions of Drs. Pearson and testimony by Knoblich. 2 Third, Plaintiff argues the ALJ improperly discredited the lay testimony of Ms. Baxted. Accordingly, Plaintiff argues the ALJ's vocational hypothetical to the VE was incomplete and the ALJ erroneously relied on the VE's testimony. STANDARD OF REVIEW The court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the 405(g); Andrews v. Shalala, 53 F.3d 1035, record. 1039 42 u.s.c. (9th Cir. § 1995). In the title of the section of Plaintiff's Opening Brief concerning the medical testimony, Plaintiff asserts the ALJ improperly considered the opinions of Dr. Shields and Tracy Pl.'s Opening Brief (#16) at 26. Aside from Taschler, Q.M.H.P. summarizing Dr. Shields' and Ms. Taschler's record evidence, however, Plaintiff does not discuss their opinions in his argument section concerning the medical testimony, and only gives them a conclusory passing mention at the end of his section Id. at 33. regarding Plaintiff's and Ns. Baxted's testimony. Because Plaintiff failed to specifically and distinctly raise these arguments in his opening brief, I find he has waived his arguments concerning Dr. Shields' and Ms. Taschler's opinions. See Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1161 n. 2 (2008). 2 6 - OPINION AND ORDER "Substantial evidence means more than a mere- scintilla but less than a preponderance; it is such relevant evidence as a reasonable Id. mind might accept as adequate. to support a conclusion." court must of all weigh the whether evidence, than rational one decision must be upheld. or If the evidence is susceptible 807 F.2d 771, 772 (9th Cir. 1986). more supports Martinez v. Heckler, detracts from the Commissioner's decision. to it The interpretation, Andrews, the Commissioner's 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). DISCUSSION I. Plaintiff's Testimony In deciding whether to accept subjective symptom testimony, an 20 C.F.R. ALJ must perform two stages of analysis. § 404.1529. First, the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce Smolen, 80 F.3d at 1281-82. the symptoms alleged. a finding of malingering, testimony about the the ALJ can severity of her reject Second, absent the symptoms only by offering specific, clear, and convincing reasons for doing so. If an ALJ finds the claimant's claimant's testimony Id. at 1281. regarding her subjective symptoms unreliable, the "ALJ must make a credibility 7 - OPINION AND ORDER the why reasons testimony the is determination citing unpersuasive ." Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. In doing so, 1999). the ALJ must identify what testimony is credible and what testimony undermines the claimant's complaints, and make "findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the] Thomas v. Barnhart, 278 F.3d 947, 958 (9th claimant's testimony." Cir. 2002). The ALJ may rely ordinary upon in weighing the credibility evaluation techniques of credibility. claimant's Tommasetti v. Astrue, 533 F. 3d 1035, 1039 (9th Cir, 2008). At the hearing, Plaintiff testified his Tr. painful and cause difficulty sitting. 46. hip problems are As to his mental limitations, Plaintiff reported he has memory problems secondary to cognitive learning Plaintiff problems, and spelling. Tr. 62. testified, As· to These Tr. 46-47. a traumatic brain injury suffered as a child. include difficulty education, Plaintiff reported he took 13 credits of community college classes in the prior semester, passed 10 credits, and had "[f]airly good grades." Tr. 59. Plaintiff testified he can sit through his classes, but that he is allowed to take breaks at will. 4 5-minute Tr. 59. Plaintiff reported his memory problems have not worsened over the years, but that they caused some problems at his prior jobs. 64. In addition to memory problems, periodically suffers severe headaches. 8 - OPINION AND ORDER Plaintiff Tr. 47. testified Tr. he As to his physical limitation s, Plaintiff reported he takes Aleve once or twice per week for pain control, but that he is not in any kind of physical therapy and does not use an assistive device. Plaintiff testified his hip condition and back Tr. 48-49. pain interfered with his prior work as a firefighte r and prevented him from performing janitoria l work because his physical condition s Tr. 52-53. cause him pain when he bends over, kneels, or squats. Plaintiff reported he can only walk one block without rest or severe pain, can sit for one hour without shifting, but would need to take 10-15 minute breaks every hour. Tr. 54-55. As to lifting, Plaintiff reported he can only rarely lift 10 pounds because of Tr. 55. back pain. As to activities of daily living, Plaintiff reported that he tried to keep weight off his hip by "sitting on the couch," and has trouble putting on clothes and tying his shoes. Tr. Plaintiff testified his hip pain interferes with his 57-58. Tr. sleep. but, bike, 58. To get around, Plaintiff reported he rides his while it is easier than walking, hurts afterward . Tr. 61. In his Adult Function Report, normal day he makes his hip frequently a cup of Plaintiff reported that in a coffee, watches television , sometimes goes to computer and manufactu ring classes: Tr. 172. and As to hygiene, Plaintiff reported he showers and shaves once per week. Tr. 173. Plaintiff noted he helps pick up dishes around the house, but does not do yard work because he is "extremely forgetful" and 9 - OPINION AND ORDER his hip causes immobility at times. Plaintiff checked Tr. 175. squat, that his conditions affect his abilities to lift, stand, walk, reach, sit, talk, kneel, bend, remember, climb stairs, complete tasks 1 concentrate, understand., follow instructions , and Tr. 177. get along with others. The ALJ rejected Plaintiff's testimony regarding his mental conditions because his allegations of disabling mental limitations are inconsistent with his work and educational record. With respect to Plaintiff's physical allegations, Tr. 25-26. the ALJ found that Plaintiff's degenerative arthritis in the right hip "justifies certain exertional and postural limitations due to chronic pain," but found that the following factors suggest "that [Plaintiff's] The ALJ pain symptoms are not necessarily disabling in nature." rejected testimony Plaintiff's as to his physical limitations because his alleged disabling physical limitations are inconsistent with his managing conservative with pain of course medical over-the-cou nter treatment, including anti-inflamm atories, and because Plaintiff walks without assistance and rides his bicycle. I conclude these reasons, taken together, constitute Tr. 26-27. clear and convincing reasons for rejecting Plaintiff's testimony. The treatment testimony. ALJ's is a citation of a conservative convincing basis course to discredit of medical Plaintiff's pain Plaintiff's occasional use of over-the-cou nter anti- inflammatory drugs to control his hip pain can reasonably be seen 10 - OPINION AND ORDER as inconsistent with his testimony of a disabling hip condition, as it is reasonable to expect a person experiencing severe hip pain to While Plaintiff's actively pursue more aggressive pain control. suggestion in his briefing that he did not want narcotic pain medication due to past drug addiction problems is also reasonable, it does not make the ALJ's conclusion concerning Plaintiff's use of Aleve unreasonable , and does not explain why Plaintiff did not seek treatment such as stronger non-narcotic pain medication, physical therapy, or even the use of ice and heat packs. Tr. 48, 409. Further supporting the ALJ's citation of a conservative course of treatment is the fact that Plaintiff did not see a doctor about his hip pain until 2007 when he reported the hip problems to Dr. Komanapalli, a disability examining physician, despite alleging the condition began in 1999 or 2000. condition is expected to worsen Tr. 311. While Plaintiff's hip time over as degenerative in nature, his failure to seek any medical treatment for the condition between 1999 and 2007 further supports the ALJ's rejection of the full extent of Plaintiff's pain symptom testimony. Finally, although I acknowledge the potential difficulties in travel between Medford and Portland, discredited follow Plaintiff's up on a University. referral I find the ALJ reasonably symptom testimony because he for failed to surgery at Oregon Health Sciences On April 13, 2010, Plaintiff sought and was granted a referral for surgery at Oregon Health Sciences University (OHSU) in 11 - OPINION AND ORDER Tr. 371. Portland. Plaintiff, however, did not follow up on the referral because he did "not feel able to travel to OHSU." 409. Tr. Although I find this reason less persuasive than the above, I conclude the ALJ could rationally conclude Plaintiff's failure to follow up on the OHSU surgery referral indicates Plaintiff's pain symptoms are not as severe as alleged, especially in light of the otherwise conservative treatment The sought. Plaintiff ALJ properly and convincingly cited Plaintiff's relatively conservative course of treatment to reject Plaintiff's testimony of disabling hip pain. The ALJ also properly cited Plaintiff walking without assistance and riding a bicycle for transportation to discredit Plaintiff's testimony of disabling hip pain. While I acknowledge these activities do not themselves demonstrate Plaintiff is capable of full-time employment, inconsistent with the ALJ reasonably concluded they are Plaintiff's allegations of severe hip pain. Indeed, even in November of 2010, Plaintiff was walking without a limp and reported to his primary care provider that he had to walk approximately three-to-four hundred yards to the bus stop. 409-10. Tr. While he said this amount of walking left him "wiped out," it is substantially more than the one block Plaintiff reported he could walk at the hearing. Tr. 54. The ALJ properly noted that the record evidence of Plaintiff walking and bicycling contradicted 12 - OPINION AND ORDER his testimony of severe substantial very causing pain hip limitations. Finally, the reasonably ALJ cited work Plaintiff's and educational record as a reason to reject Plaintiff's allegations of disabling mental impairments. Plaintiff testified at the hearing Tr. 64. that his memory problems have not worsened over the years. in construction , Yet Plaintiff previously worked on a fire crew, Tr. and in various maintenance and janitorial jobs. particular, as the ALJ noted, 2009 evaluation with Dr. 78-83. In Plaintiff reported in an April 24, that Villanueva he did not have any difficulties performing his work with the forest fire crew, and was considering going back to that job the following summer. Tr. 323. The ALJ reasonably cited Plaintiff's work history as a reason to reject Plaintiff's testimony that his mental limitations precluded him from even unskilled work. In addition, ALJ reasonably the cited Plaintiff's modest academic success as a reason to reject his testimony as to the extent of his mental hearing that Plaintiff testified at the limitations. although he failed some of his community college classes and had to drop some others, he maintained a 2.88 GPA. 65. Even college, it considering was Plaintiff's reasonable for the alleged ALJ to Tr. accommodatio ns at that if conclude Plaintiff could retain the information necessary to maintain a 2.88 GPA, he could retain the information necessary to perform unskilled 13 - OPINION AND ORDER work defined as routine, repetitive tasks with simple instructions . Tr. 89. I conclude these reasons, taken together, constitute clear and convincing reasons for rejecting the full extent of Plaintiff's the ALJ did not entirely reject Notably, alleged limitations. Plaintiff's allegations, as and included significant mental he physical limitations in the RFC. The ALJ appropriately weighed Plaintiff's testimony. II. Medical Testimony Plaintiff next argues the ALJ erred in his consideration of the medical testimony by improperly rejecting the opinions of Drs. Pearson and Knoblich. convincing reasons to The Commissioner must provide clear and reject treating or examining physician. 830-31 (9th Cir. 1995). opinion uncontradicte d the Lester v. Chater, a Where of a 81 F.3d 821, physician's opinion is contradicted by that of another physician, the ALJ may reject the physician's opinion by providing specific and legitimate reasons supported by substantial evidence in the record. Id. ~'The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.'" 661, 671 (9th Cir. 2012) Chaudhry v. Astrue, (quoting Bray v. Comm' r Soc. Sec. Admin., 554 F. 3d 1219, 1228 (9th Cir. 2009)). 14 - OPINION AND ORDER 688 F.3d the "'Where the evidence, ALJ is F. 3d 1030, 1040 (9th Cir. translating the claimant's limitations in the RFC. with "consistent testimony." A. Dr. conflicting medical Id. (quoting Benton v. Barnhart, 331 The ALJ is responsible for 2003)). medical into conditions functional See Stubbs-Danie lsen v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). is contains charged with determining credibility and resolving the conflict.'" it record Ultimately, the RFC is sufficient if restrictions identified in the medical Id. Dr. Knoblich Knoblich, Plaintiff's treating orthopedist, submitted a 14, 2010 opining about Plaintiff's physical functional limitations. Tr. Physical 403-07. Functional Dr. Capacity Questionnaire Knoblich experience pain severe opined that enough to on August Plaintiff would interfere with frequently attention and concentration needed to perform even simple tasks, could only walk one block without rest or severe pain, sit for one hour at a time with shifting, and only stand for ten minutes at a time. Tr. 404. In total, Dr. Knoblich opined Plaintiff could only sit and stand or walk for less than two hours each in an eight-hour workday. 4 05. Tr. Dr. Knoblich wrote that Plaintiff ''cannot work at this time," and that "walking increases pain dramatically ," and checked that if Plaintiff worked, Id. he would need 10-15 minute breaks every hour. Dr. Knoblich limited Plaintiff to lifting less than 10 pounds 15 - OPINION AND ORDER occasionally and 10 pounds rarely, and opined that Plaintiff could only rarely twist, bend, or climb stairs, and never crouch, squat, or climb ladders. Dr. Knoblich opined Plaintiff would Tr. 405-06. be expected to miss more than four days of work per month because of hip pain. Tr. Importantly, however, Dr. Knoblich noted 406. that the earliest date his description of symptoms and opined limitations applied to Plaintiff was "since 1999.n Tr. 407. The ALJ gave littl'e weight to Dr. Knoblich' s opinion because inconsistent with the objective it was evaluation, in Dr. findings Hwee' s Plaintiff's self-reports about walking and cycling, conservative course of treatment, and Plaintiff's testimony that he opinion is contradicted the by ·\<Y. . Tr. 28; has good attendance at college. Because Dr. Knoblich's evaluating opinions of Drs. Komanapalli and Hwee, as well as the reviewing opinion of Martin Kehrli, M.D., the ALJ was required to cite specific and legitimate reasons for rejecting Dr. Knoblich's opinion. Lester, 81 F.3d at I conclude the ALJ properly discredited Dr. 830-31. Knoblich's opinion. The ALJ properly rejected Dr. Knoblich's opinion because it was inconsistent Knoblich's very with the without difficulty. Tr. "mild diminished 16 - OPINION AND ORDER of findings, significant Plaintiff walked around the found findings room, 330. range Dr. Dr. Unlike Hwee. Hwee observed took his shoes off, motion," but "no that and sat As to Plaintiff's hip,· Dr. of Dr. Hwee significant Tr. diminished strength." Plaintiff reported to Dr. 332. Hwee that "[h]e can walk about one-fourth of a mile, and then his hip starts to be somewhat painful. He can sit for 20 minutes before needing to readjust difficulty. his position." ALJ The He can stand for two hours without Tr. 329. reasonably found these findings undercut Dr. Knoblich's opinion because they are manifestly inconsistent with Dr. opinion Hwee' s Dr. findings, in many respects. Contrary Hwee' s Dr. to Knoblich opined Plaintiff can only walk one block without severe pain, can only stand for 10 minutes, had significant and pain with limitation limitations had existed since 1999, Tr. 403-04. findings. that these ten years before Dr. Hwee's of range motion, and Inconsistency with Dr. Hwee's findings in his examination is a compelling reason to discredit Dr. Knoblich's opinion. In addition, Knoblich's the ALJ reasonably discredited Dr. opinion because it is inconsistent with Plaintiff's self-reports of walking and riding a bicycle. Indeed, as discussed above, Plaintiff described walking approximately one-quarter mile to the bus stop, albeit while feeling "wiped out" at the end. Additionally, the ALJ reasonably found Dr. very significant report of hip bicycling limitations for 409. Knoblich's opinion of inconsistent transportation. Tr. with Plaintiff's Finally, the ALJ reasonably found Dr. Knoblich's opinion of persistent, significant 17 -OPINION AND ORDER hip pain inconsistent with Plaintiff's treatment of such pain with only occasional use medication. I constitute specific of conclude and over-the-counter the above legitimate anti-inflammatory reasons, reasons taken reject to together; the extent of limitations contained in Dr. Knoblich's report. full The ALJ appropriately weighed Dr. Knoblich's opinion. B. · Dr. Pearson Plaintiff argues the ALJ improperly rejected Dr. 2011 evaluative opinion. examined Plaintiff applications. moderate to Dr. ·Pearson is an examining physician who twice Dr. in Pearson severe Pearson's relation opined problems that to his Plaintiff understanding and disability "would have remembering instructions in an entry-level work environment, with problems at the severe level occurring when directions or instructions increase in complexity." Tr. 444. In addition, Dr. Pearson observed that Plaintiff would have "moderate problems with pace, persistence, and concentration, certainly most noticeable in a work situation requiring attention to visual detail, rapid pacing, and error-free performance." Id. Dr. Pearson did not think Plaintiff would have significant problems with social relations in the workpalce. Id. In addition to his written opinion, Dr. Pearson distilled his thorough and lengthy findings on evaluation into a Medical Source Statement of Ability to do Work-Related Activities (Mental) in which he checked that Plaintiff would have no limitation in his 18 - OPINION AND ORDER abilities to understand and remember simple instructions, carry out simple instructions, decisions. or make Tr. 447. judgments on simple work-related Dr. Pearson checked, however, that Plaintiff would be markedly limited in his ability to understand and remember complex instructions, and moderately limited in his abilities to carry out complex instructions and make judgments on complex workrelated decisions. As to social performance, Dr. Pearson checked that Plaintiff would be mildly limited in his abilities to interact appropriately workers, as well as with to the public, respond supervisors, appropriately to situations and to changes in a routine work setting. and co- usual work Tr. 448. Dr. Pearson additionally noted that Plaintiff would likely be "slow and error-prone" in work requiring visual information processing. Id. As to the duration of Plaintiff's limitations, Dr. Pearson opined they are "lifelong, possibly worsening over the years in context of extensive substance abuse." Id. Because the limitations in Dr. Pearson's 2011 opinion were contradicted by Dr. Villanueva's evaluative opinion, Dr. Pearson's 2007 evaluative Anderson, legitimate opinion, Ph.D., reasons the to ALJ and was reject the reviewing opinion of required Dr. to Pearson's Dorothy cite specific and 2011 opinion. I conclude the ALJ failed to do so, but that any error in weighing Dr. Pearson's 2011 opinion is harmless because the RFC adequately accounts for Dr. Pearson's opined limitations. 19 - OPINION AND ORDER The ALJ's sole stated reason for rejecting Dr. Pearson's 2011 opinion was that Plaintiff's modest academic success "suggests that he retains sufficient cognitive functioning to perform at least some basic mental work-related activities.n Tr. 26. The ability to do such basic mental work-related activities, however, is not inconsistent with Dr. Plaintiff was activities. not Pearson's opinion, limited in his as Dr. ability to Pearson opined complete such Tr. 447. I find the ALJ's error in at least nominally rejecting Dr. Pearson's opinion was harmless because accommodates Dr. Pearson's opinion. significant limitations Dr. the RFC adequately As discussed above, the most Pearson endorsed were in Plaintiff's abilities to understand and remember complex instructions, carry out complex instructions, and make complex work-related decisions, as well as the limitation concerning visual information processing. In the RFC, however, the ALJ limited Plaintiff to simple, unskilled work, which he defined to the VE as "routine, repetitive tasks with simple instructions,n restrictions a identifiedn limitation in Dr. I find Pearson's Danielson, 539 F.3d at 1174; Tr. 24, 89. "consistent opinion. with Stubbs- In addition, I find the checked mild limitations in social interaction and responding to changes in a work setting did not require any additional accommodation in the RFC in light of Dr. Pearson's contemporaneous opinion that Plaintiff would not 20 - OPINION AND ORDER have significant problems in social relations in a work. environment.' Thus, 1vhile I Tr. 444. find the ALJ erred by at least purporting to reject Dr. Person's 2011 opinion, I conclude such error was harmless because the limitations opined by Dr. Pearson were sufficiently accommodated by the RFC. III. Lay Testimony Plaintiff next asserts that the ALJ cited insufficient reasons to reject the testimony of Plaintiff's friend and social service coordinator, Kate Baxted. symptoms how or an Lay testimony regarding a claimant's impairment affects her ability to competent evidence that an ALJ must take into account. Astrue, 674 F.3d 1104, witness testimony, the witness. At the 1114 (9th Cir. work is Molina v. To discount 2012) lay the ALJ must give reasons that are germane to Id. hearing, Ms. Baxted testified she sees Plaintiff between one and four times per month, and that she used to see him more often. Tr. 68. Ms. Baxted reported she helps Plaintiff with his Social Security papers and counsels Plaintiff. Id. Ms. Baxted reported Plaintiff always nforgets what you tell him to do," and that Plaintiff's physical limitations precluded him from helping with chores around Ms. 3 Baxted's social service center. Tr. 69. Plaintiff indicated he did not have trouble in college getting along with other students or professors. Tr. 66. Additionally, when asked, the VE opined that a limitation to occasional contact with the general public would not affect any of the jobs the VE identified as available to Plaintiff. Tr. 89. 21 - OPINION AND ORDER Ms. Baxted reported that Plaintiff has significant memory problems and is "confused most of the time." Tr. 71. When asked by the ALJ at the hearing, Ms. Baxted reported that she would be surprised to hear Plaintiff has nearly a B-average in his college coursework. Tr. 73. In her Third Party Function Report, Ms. Baxted reported Plaintiff "had always been limited in his ability to get things done." Tr. 182. Ms. Baxted reported that Plaintiff does a poor job attending to hygiene and "forgets what he is doing and walks off." Tr. 182-83. Ms. Baxted checked that Plaintiff was limited in his abilities to lift, squat, bend, stand, reach, walk, sit, kneel, talk, climb stairs, remember, complete tasks, concentrate, understand, and follow instructions. Tr. 186. The ALJ gave little weight to Ms. Baxted's testimony because, as her surprise demonstrates, at Baxted' s relative academic success she is not sufficiently familiar with Plaintiff's functional limitations. Mx. Plaintiff's I find this is a germane reason to reject testimony. The ALJ reasonably found Plaintiff's ability to earn passing grades at community college inconsistent with Ms. Baxted' s testimony of very significant memory limitations. In addition, the ALJ reasonably pointed out that Ms. Baxted has a relatively modest Accordingly, amount of contact with Plaintiff. Tr. 28. I conclude. the ALJ reasonably rejected Ms. Baxted's opinion. 22 - OPINION AND ORDER Because I conclude the ALJ properly considered Plaintiff's testimony and Ms. Baxted's testimony, and did not commit reversible error in his Plaintiff's consideration argument that of the the medical ALJ made evidence, improper I reject findings and improperly relied on the testimony of the VE based on an inadequate vocational hypothetical. The ALJ was entitled to rely on the VE's testimony to carry the Commissioner's burden at Step Five. CONCLUSION For the foregoing reasons, the decision of the ALJ AFFIRMED. IT IS SO ORDERED. DATED this ~ day of April, 2014. Malcolm F. Marsh United States District Judge 23 - OPINION AND ORDER is
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