Moore v. Commissioner Social Security Administration, No. 3:2012cv02233 - Document 22 (D. Or. 2014)
Court Description: OPINION AND ORDER. For the reasons stated above, the Commissioner's final decision denying benefits to plaintiff is AFFIRMED. This action is DISMISSED. IT IS SO ORDERED. Signed on 01/21/2014 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Case No. 3:12-cv-02233 -MA JANET MOORE, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. MERRILL SCHNEIDER P.O. Box 14490 Portland, OR 97293 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 ERIN F. HIGHLAND Special Assistant United States Attorney Office of the General Counsel 701 Fifth Ave., Suite 2900, M/S 221A Seattle, WA 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER OPINION AND ORDER MARSH, Judge Plaintiff Janet Marciel Moore seeks judicial review of the final decision of the Commissioner of Social Security denying her applications for disability insurance benefits (DIB) and a period of disability benefits under Title II of the Social Security Act, 42 U.S.C Income §§ (SSI) 401-403, and application for Supplemental Security disability benefits under Title XVI of the Social Security Act, 42 U.S.C. pursuant to 42 U.S.C. §§ 1381-1383f. 405(g). § This Court has jurisdiction For the reasons that follow, the decision of the Commissioner is affirmed. FACTUAL AND PROCEDURAL BACKGROUND On March 18, 2010, plaintiff filed applications for a period of disability supplemental benefits, security disability insurance Plaintiff income. benefits, alleges and disability beginning on November 30, 2009, due to sciatic nerve pain, chronic pain, arthritis, anxiety, Plaintiff chronic hepatitis C, alleges nausea, acid reflux, that the fractured and a following sustaining full time employment: ribs, depression, fractured right knee. also prevent her from leg length discrepancy, insomnia, shortness of breath, fecal incontinence, depression, post-traumatic stress disorder, and poly-substance abuse currently in remission. Plaintiff's claims were denied initially on June 2, 2010, and upon reconsideration on September 15, 2010. Plaintiff filed a request for a hearing before an administrative law judge (ALJ). 2 - OPINION AND ORDER An ALJ held a hearing on June 16, 2011, at which plaintiff appeared with her representative and testified. Livneh, also appeared and testified. issued an unfavorable A vocational expert, Hanoch On June 23, 2011, the ALJ Appeals Council denied The decision. plaintiff's request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review. Plaintiff was 53 years old on the date of her alleged onset of disability. completed one year of college. a bookbinder, construction high a has Plaintiff school education and has Plaintiff has past relevant work as laborer, helper, roofer and router operator. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. 416.920. Each step Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. is potentially dispositive. at steps one through four. § The claimant bears the burden of proof See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685,689 (9th Cir. 2009); Tackett v. Apfel, F. 3d 1094, 1098 (9th Cir. 1999). 180 At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. 1035, 1043 (9th Cir. 1995). 3 - OPINION AND ORDER Andrews v. Shalala, 53 F.3d The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through June 30, 2014. A claimant seeking a period of disability benefits and DIB benefits under Title II must establish disability on or prior to the last date insured. 400 F.3d 42 U.S.C. § 416(I) (3); Burch v. Barnhart, 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. §§ 404.1520(b), 404.1571 et seq., 416.920(b), 416.971 et seq. At step two, the ALJ found that plaintiff had the following severe impairments: nausea. degenerative joint disease of the hands and 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 to perform less than a full range of medium work and is limited to no more than frequent use of the hands for handling or fingering. See 20 C.F.R. §§ 404.1527, 404.1529, 416.927, 416.929. At step four, the ALJ found plaintiff able to perform her past relevant work as a bindery worker and a router operator. C.F.R. §§ 404.1565, 416.965. 4 - OPINION AND ORDER See 20 Accordingly, the ALJ concluded that plaintiff is not disabled under the meaning of the Act. ISSUES ON REVIEW plaintiff contends the following On appeal to this court, ALJ improperly assessed plaintiff's errors were committed: (1) the credibility; (2) the ALJ failed to properly evaluate the opinion of non-examining physician K. McAuliffe, M.D.; properly evaluate the employment specialist; opinion and (4) of Lynne (3) the ALJ failed to Carter, a vocational the ALJ improperly evaluated lay testimony from Amanda Crist, plaintiff's daughter. 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. 42 u.s.c. "Substantial evidence means more than a mere scintilla but less than a preponderance; such relevant evidence as a reasonable adequate to support a conclusion." 690. mind might Id.; Valentine, it is accept as 574 F.3d at The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). Martinez v. Heckler, The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews, 53 F.3d at 5 - OPINION AND ORDER If the evidence supports the Commissioner's conclusion, 1039-40. the Commissioner must be affirmed; "the court may not substitute Edlund v. Massanari, its judgment for that of the Commissioner." 253 F.3d 1152, 1156 (9th Cir. 2001); Batson, 359 F.3d at 1193. DISCUSSION I. Plaintiff's Credibility Standards A. determine To whether a testimony claimant's regarding subjective pain or symptoms is credible, an ALJ must perform two 20 C.F.R. stages of analysis. is stage a threshold test in §§ 404.1529, which the 416.929. The first 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. Commissioner Soc. Sec. 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 arbitrarily discredit the claimant's testimony. 6 - OPINION AND ORDER ALJ did not Tommasetti, 533 the F. 3d at 1039; 278 F.3d 947, Barnhart, Thomas v. 958 (9th Cir. Factors the ALJ may consider when making such credibility 2002) . determinations include claimant's the history, treatment claimant's medical objective the the evidence, daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain character relevant and medication, evidence. Tommasetti, 533 F.3d at 1039. B. Analysis At the hearing, plaintiff testified that she lives in a fifth wheel trailer, is able shop, to has simple meals, prepare no difficulty cleaning her home, and has no difficulty with self-care. Plaintiff testified that she has a current driver's license and can drive herself to the grocery store. Plaintiff testified that her major impediments to working full time are "depression and nerves my and Tr. stomach." 46. Plaintiff stated that she has nausea all day, and that her current nausea medication is not effective and when combined with another medication, sleeping. causes restless leg syndrome Plaintiff described that when her preventing she wakes, she from feels nauseated for a few hours until she has a painful bowel movement, at which point she feels better. and bloating, however, return Plaintiff testified that her pain within a half hour. Plaintiff further testified that she uses medical marijuana four times a day for nausea. 7 - OPINION AND ORDER to five Plaintiff testified that prior injuries to her hands cause her to experience hand pain when performing repetitive w.ork. Plaintiff testified that she experiences low back pain when she stands at work, for which she has been prescribed muscle relaxers, but noted she that was not currently taking medication for back pain. Plaintiff admitted that she had not discussed her sciatic nerve and back issues with her current physician because she is focusing on alleviating her nausea. Plaintiff testified that she underwent a two-week work trial arranged through Oregon vocational rehabilitation in April of 2011, during which she missed four days out of 10 due to nausea and stomach problems. In a March 28, 2010 Function Report, plaintiff described that her nausea limits her ability to work. Plaintiff also reported frequent migraines and stress headaches, difficulty sleeping, and that her pain and depression squat, bend, stand, limit her ability to walk, concentrate, and use her hands. lift, Plaintiff stated she could walk a quarter mile, and must rest after 10 to 15 minutes, otherwise the pain is intolerable. that she had no difficulties reading, Plaintiff indicated no difficulties following instructions, and no difficulties getting along with supervisors or co-workers. Plaintiff described that she cannot handle stress, and that her left leg is shorter than her right. Plaintiff noted that her back and hand pain lasts one to three days and that standing, 8 - OPINION AND ORDER bending, twisting or gripping, or constant usage increase her pain. feels Plaintiff stated that she and feels fatigued every day, nauseous after working for a short period of time. Tr. 215-25. In an October 20, 2010 Disability Report, plaintiff reported that her depression and nausea have worsened, she has started treatment for depression, and lesions have developed on her cervix. In the medically decision, determinable the ALJ concluded impairments that could that plaintiff has reasonably be expected to produce some symptoms, but that plaintiff's statements intensity, concerning the persistence, and limiting effects of those symptoms are not entirely credible. Contrary to plaintiff's assertion, reasons, citing subjective complaints: her activities record specific of the ALJ provided three evidence, that undermine her (1) lack of objective medical evidence; (2) daily living were inconsistent with total disability; and (3) poor work history. lack of objective medical evidence. 1. When the claimant's own medical record undercuts her assertions, the ALJ may rely on that contradiction to discredit the claimant. Morgan v. Cir. 1999) Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007); Commissioner Soc. Sec. Admin., 169 F.3d 595, 600 (9th The ALJ discussed the lack of medical evidence with respect to each of plaintiff's various alleged impairments. 9 - OPINION AND ORDER Concerning plaintiff's allegations of disabling depression, the ALJ found that her depression appears intermittent and wellIn medication. with controlled 2008, plaintiff reported some depression due to a pending divorce, and her depression improved on anti-depressants. As the ALJ indicated, in January, May, and July of 2009, plaintiff denied any depression, anxiety or agitation, and stopped taking medication by the time of her alleged onset date. Tr. 328, 342, As 34 7. the ALJ noted, in of November 2009, plaintiff described feeling depressed to her medical marijuana provider, time. however, Tr. 356. she was not taking anti-depressants at that Plaintiff restarted anti-depressants in October of 2010, and reported improvement on Paxil. Tr. 422. Moreover, the ALJ found that plaintiff's depression was nonsevere, plaintiff does not challenge. a finding Based on the lack of objective medical evidence to support plaintiff's contention of disabling depression, the ALJ could infer that her depression was not as severe as alleged, and appropriately discounted her credibility on this basis. See Burch, 400 F.3d at 681 (discounting claimant's credibility where complaints of severe depression not supported by medical record) . With respect to plaintiff's chronic nausea, the ALJ correctly noted that it has not been associated with or connected to her hepatitis C in any fashion, stable and asymptomatic. 10 - OPINION AND ORDER and that plaintiff's hepatitis C is The ALJ also correctly indicated that plaintiff's hiatal hernia. abdominal except for a small have been normal, ultrasound and endoscopy, 2009 a including findings, laboratory Moreover, the ALJ discussed that in 2008, plaintiff reported to her then treating Nurse Practitioner Alice Johnson that In July of 2009, her nausea was well-controlled with Prilosec. plaintiff reported to her then treating Nurse Practitioner Deborah that Rupae plaintiff Nexium was helpful, At gastroenterologist . the she had that plaintiff hearing and run out, by her testified that prescribed medicine the to resorted but medications were not helpful. As the ALJ discussed, in November of 2009, plaintiff wanted to switch to medical marijuana for her When nausea. plaintiff requested that Nurse Rupae send records to the medical marijuana provider, Nurse Rupae instructed plaintiff that her office would not support that decision, and that if plaintiff proceeded, would need to switch primary care providers. she As the ALJ detailed, plaintiff told Nurse Rupae she would switch providers in order to receive medical plaintiff marijuana. stopped seeing sporadic medical care. Lastly, Nurse the Rupae, ALJ she noted has that received after only As the ALJ correctly indicated, plaintiff testified that she continues to take medical marijuana four to five times a day, despite acknowledging that it provides only limited relief for her nausea. Tr. 424. The ALJ's findings are supported by substantial evidence in the record. 11 - OPINION AND ORDER degenerative plaintiff's Concerning plaintiff's hands, disease joint in the ALJ discussed plaintiff's history of hand injuries, and that in 2008, plaintiff reported some hand pain at night, and that her treating physician at the time, Michelle John, M.D., suspected arthritis or Tr. splints to wear at night. carpal tunnel and gave wrist her The ALJ detailed that x- 275-79. rays of plaintiff's hands in October of 2008 showed modest findings of left hand degenerative disease and scattered findings of right Tr. 282- hand degenerative disease in the interphalangeal joints. 84. The also noted ALJ a May 2010 7, physical capacities examination performed by Matthew Hansen, M.D., finding plaintiff's grasping ability was "completely intact" and that plaintiff demonstrated no "diminution of function with repetition." ALJ detailed, Dr. Hansen found no limitations with plaintiff's ability to grasp and manipulate large and small objects. Furthermore, As the the ALJ discussed at Tr. 386. length plaintiff's work attempt through vocational rehabilitation in March and April of 2011 as it related to her hand pain. of plaintiff's employment completed performance specialist, who The ALJ discussed a summary noted that by Lynne Carter, plaintiff was and installing spikes on shoes "which requires a lot of hand dexterity/fine motor skills," and that plaintiff was able to use tools to fix defects in the shoes, and that plaintiff was "as productive as others doing the same work." Tr. 12 - OPINION AND ORDER 449. The ALJ's findings concerning plaintiff's alleged hand pain are supported by substantial evidence Based on the lack of objective medical evidence in the record. supporting the severity of functional limitations resulting from plaintiff's alleged hand pain, the ALJ could discredit her on this basis. Concerning plaintiff's alleged back pain, neck pain, and joint Dr. that found ALJ the pain, Hansen's May physical 2010 7, examination undercut her allegations of disabling pain. As the ALJ Dr. Hansen determined that plaintiff had full range of detailed, motion in her joints, had full motor strength in all extremities, and negative straight legs tests negative Spurling's test, plaintiff that The ALJ noted that Dr. Hansen observed Tr. 386. radiculopathy. walked for around examination the without room difficulty, transferred from the chair to table without difficulty, To be sure, and removed her slippers without difficulty. Hansen found no physical functional Dr. on his limitations based examination. The ALJ discussed also that in June of 2009, plaintiff telephoned her then treating Nurse Practitioner Rupae, complaining of back pain from standing on a hard floor all day and requesting pain medication, and that Nurse medication would not be given. from this singular complaint, Rupae responded that As the ALJ correctly notes, aside there are no medical records indicating that plaintiff has sought treatment for back pain. 13 - OPINION AND ORDER pain The ALJ's findings are wholly supported by substantial evidence in the record. Based on the ALJ's exhaustive review of plaintiff's medical records, ALJ the could impairments discredited been have controlled noting it was a concern, basis for disability." her with remediated but determined "it is not a The ALJ further found that "there is no [plaintiff] evidence that or that The kLJ considered plaintiff's lack of medication or treatment. insurance, finding plaintiff, has attempted to avail herself of all available treatment that would be available at no charge or on a sliding scale." Tr. 28. Plaintiff now complains that the ALJ erred in discounting her credibility on the basis that she failed to pursue or follow medical treatment without making a further inquiry of plaintiff at the hearing. According to plaintiff, the ALJ had a duty to develop the record further by asking plaintiff questions about her lack of medical treatment or follow up relying on SSR 96-7p. SSR 96-7p provides in relevant part: the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical The visits or failure to seek medical treatment. the individual or adjudicator may need to recontact question the individual at the administrative proceeding in order to determine whether there are good reasons the individual does not seek medical treatment or does not pursue treatment in a consistent manner. The explanations 14 - OPINION AND ORDER provided by the individual may provide insight into the individual's credibility. SSR 96-7p, p. *7-8. The Commissioner responds that the ALJ was not required to make any additional inquiry of plaintiff because the record was developed, sufficiently and contained evidence showing that plaintiff lacked financial resources and insurance as the reason plaintiff did not seek treatment. In her reply, plaintiff argues that the ALJ failed to consider other reasons in the record before making the credibility determination, citing an out-of-district case, Graham v. Astrue, No. CV 12-00425-JEM, 2012 WL 3627400 (D.C. Cal. Aug. 21, 2012). Graham, In an ALJ rejected Graham's credibility in part because claimant Graham failed to seek medical treatment despite his lack of financial resources and because there was no evidence that Graham had attempted to pursue other low-cost treatment. at *8. Id. On appeal, the Graham court concluded that the credibility finding determining erroneous, was that ALJ's the otherwise reasonable explanation was undermined by other evidence in the record that the ALJ failed to take into account in the credibility Id. analysis. may have Specifically, the court cited other evidence that explained why Graham did not seek low-cost options, including that Graham had "borderline intellectual functioning, was in special education 15 - OPINION AND ORDER in school, suffers from depression and Id. auditory hallucinations and is psychiatrically disabled." Graham is readily distinguishable from the facts in this case. Unlike Graham, in this case there is no ¢other evidence" in the record to suggest that plaintiff incapable of seeking out other low-cost options. plaintiff's or Unlike Graham, she which depression, is impairment mental only impaired is mentally And, unlike Graham, it is undisputed acknowledges is non-severe. that plaintiff has completed a year of college and was observed to Tr. 449. have good problem-solving skills. Graham, Critically, unlike the primary reason now proffered by plaintiff for her failure to seek treatment is her lack of financial resources, which was the in well-documented record and considered by the ALJ. Because the record was neither inadequate nor ambiguous on this point, the ALJ's duty to develop the record was not triggered. See Mayes v. Massanari, 276 F. 3d 453, 459-60 (9th Cir. 2001) ( ¢An ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for Therefore, proper evaluation of the evidence.") . persuasive and provides no basis for Graham is not overturning the ALJ's credibility determination. In short, based upon the lack of objective medical evidence, including her allegedly disabling nausea, the ALJ could infer that plaintiff's inconsistent failure with to the 16 -OPINION AND ORDER seek low-cost severity of her treatment options complaints, and was could See Molina v. Astrue, 674 F.3d 1104, discredit her on that basis. (9th Cir. 1114 2012) (upholding negative credibility assessment under SSR 96-7p where ALJ attributed plaintiff's failure to seek treatment·to personal preference). 2. activities of daily living The ALJ also discounted plaintiff's credibility based on the fact that her alleged impairments have not interfered with her ability to activities perform any daily of Where living. a activities indicating capacities that are transferrable to a work setting, an ALJ may claimant is able everyday perform to discredit a claimant on that basis. Molina, 674 F.3d at 1113. And, an ALJ may discredit a claimant who may have some difficulty functioning to the extent that those activities contradict a claim of total disability. Id.; Turner v. Commissioner of Soc. Sec., 613 F. 3d 1217, 1225 (9th Cir. 2010). lives is independently, to able As the ALJ detailed, plaintiff perform housekeeping personal care, drives, shops, and prepares simple meals. and all As the ALJ specifically noted, in 2010, plaintiff indicated she takes care of a small yard, cares for her dog and cat, spends time with family and watches substantial television. evidence The in the ALJ' s findings record. are supported by The ALJ could reasonably conclude that her activities of daily living were inconsistent with the severity of her alleged impairments. Ill! 17 - OPINION AND ORDER 3. poor work history A poor work history discredit plaintiff. is a legitimate basis upon which to Thomas, 278 F.3d at 959 (upholding the ALJ's finding that claimant's poor work history "negatively reflected her credibility regarding her inability to work. ¢) . To be sure, plaintiff's earnings records from 1997 to 2003, and again in 2007, indicate that she did not satisfy the "gainful ¢ employment level. The ALJ's findings are supported by substantial evidence in the Tr. record. Based 163. on plaintiff's uncontradicted past earnings reports, the ALJ could infer that plaintiff's sparse work history before her alleged onset of disability undermined her testimony that her inability to work after her alleged onset date was due to employment disability. history before substantial evidence Therefore, the the gaps alleged onset supporting the ALJ's of in plaintiff's disability adverse are credibility finding. In summary, based on my careful revie ¢.v of the record, I conclude that the ALJ has provided specific, clear and convincing reasons for discounting plaintiff's credibility. II. Physician Testimony A. Standards There are three types of medical opinions in social security cases: those from treating physicians, non-examining examining physicians, (or "reviewing ¢) physicians. 18 - OPINION AND ORDER Lester v. Chater, and 81 F.3d 821, 830 (9th Cir. 1995); Holohan v. Massanari, 246 F.3d 1195, Generally speaking, a treating physician's 1201 (9th Cir. 2001). opinion carries more weight than that of an examining physician, and an examining physician's opinion carries more weight than that If a 246 F.3d at 1201. Holohan, of a non-examining physician. treating or examining doctor's opinion is contradicted by another doctor's opinion, reasons. it may be rejected by specific and legitimate Bayliss v. Barnhart, 427 F. 3d 1211, 1216 (9th Cir. 2005). An ALJ may, however, reject the opinion of an examining physician in favor of a non-examining physician if the ALJ "gives specific, legitimate reasons for doing so, and those reasons are supported by substantial record evidence." Roberts v. Shalala, 66 F. 3d 17 9, 184 (9th Cir.1995). An ALJ can meet this burden by providing a detailed summary of the facts evidence, medical conflicting and stating interpretation of that evidence, and making findings. his own Tommasetti, 533 F.3d at 1041; Carmickle, 533 F.3d at 1164; Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. When evaluating conflicting 1989). opinions, an ALJ is not required to accept an opinion that is not supported by clinical findings, or is brief or conclusory. Bray v. Commissioner Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); F.2d Magallanes, 881 physician's opinion at that subjective complaints. 19 - OPINION AND ORDER 751. is An based on ALJ a also may claimant's Tommasetti, 533 F.3d at 1040. discount a discredited B. Analysis Plaintiff argues that the ALJ failed to properly consider the opinion of non-examining physician K. McAuliffe, M.D., a medical Plaintiff reviewer for Oregon Vocational Rehabilitation Division. suggests that the ALJ rejected Dr. McAuliff's opinion based solely Plaintiff, on the adverse credibility determination. however, overlooks that not only did the ALJ reject Dr. McAuliffe's opinion because it was based on plaintiff's previously rejected subjective complaints, but also because it conflicted with that of examining I note that Dr. McAuliffe is the physician John P. Takacs, D.O. . only physician disabling, and opine to that that plaintiff plaintiff's does not chronic challenge nausea the is ALJ's evaluation of Dr. Takacs's opinion. In the decision, the ALJ provided a thorough discussion of the conflicting medical evidence from Drs. McAuliffe and Takacs. On June 24, 2010, Dr. McAuliffe reviewed plaintiff's medical history prior to plaintiff's vocational rehabilitation placement and noted that plaintiff has minimal documentation for her depression and joint pain. that Tr. 467. plaintiff's As the ALJ indicated, Dr. McAuliffe opined prognosis at that time was unclear, and recommended a function test and psychological evaluation to focus on current drug/alcohol use. Tr. 29, 467. The ALJ discussed that Dr. McAuliffe noted that plaintiff may have impaired endurance and should avoid exposure to excessive solvents or fumes. 20 - OPINION AND ORDER The ALJ also out set a Dr. detailed summary of Takacs's opinion, the physician who performed the August 11, 2010, physical test function placement. plaintiff's to prior vocational rehabilitation As the ALJ indicated, Dr. Takacs specifically discussed plaintiff's nausea, opining that it might be caused by her hiatal hernia. The ALJ noted that Dr. Takacs provided plaintiff with medication samples and opined that a very inexpensive medication could be prescribed which could dramatically decrease plaintiff's Tr. symptoms and greatly increase her functionality. 28, 466. Overall, Dr. Takacs opined that plaintiff could perform medium work with some limitations. Tr. 465-66. The ALJ also discussed an addendum to Dr. McAuliffe's opinion dated May 12, 2011, occurring after plaintiff's work attempt. As reviewed Dr. the ALJ noted, Dr. McAuliffe that indicated she Takacs's examination notes and reviewed laboratory results ruling out plaintiff's McAuliffe then hepatitis opined C as after a cause plaintiff's of her nausea. Dr. work attempt that plaintiff: isn't stable; she misses or has to interrupt work on the basis of her nausea but without insurance hasn't had the Once that has been necessary evaluation or treatment. done and the problem is resolved, it may be possible to consider work but at this point her primary need is Would encourage her to apply for medical care. disability. The ALJ discussed Dr. McAuliffe's opinion at discounted that opinion for the following reasons: 21 - OPINION AND ORDER length, and Dr. McAuliffe's opinion claimant is not stable is given some weight. However, claimant has not followed through with medical care and continues to use only medical marijuana, which she admits in not helping her nausea. While lack of insurance is of concern, it is not a basis Further there is no evidence that for disability. claimant has attempted to avail herself of all available treatment the would be available at no charge or on a The above residual functional capacity sliding scale. for a limited range of medium work better reflects the record as a whole, including the medical opinion of Dr. Takacs, an examining doctor. Tr. 29. I conclude the ALJ provided specific and legitimate reasons for rejecting Dr. McAuliffe's opinion that plaintiff was disabled by her nausea that are supported by substantial evidence in the I have concluded First, as discussed above, record as a whole. that the ALJ did not err in discrediting plaintiff's testimony about the severity of her nausea. The record shows that plaintiff and began treating with medical marijuana in November of 2009, continues to use it four to five times a day, despite that it does As the ALJ found, it is unclear whether not alleviate her nausea. plaintiff followed through with the medications recommended by Dr. the Takacs. Second, examining physician ALJ Dr. gave Takacs more weight that because consistent with the record as a whole. the opinion opinion was to See Andrews, of more 53 F.3d at 1040-41 ("greater weight is accorded to the opinion of an examining physician than a non-examining physician.") The ALJ' s findings are supported by substantial evidence in the record as a whole. sum, I conclude that 22 - OPINION AND ORDER In the ALJ provided specific and legitimate reasons for rejecting the opinion of non-examining physician Dr. Tommasetti, 533 F.3d at 1041. McAuliffe. III. Employment Specialist Lynne Carter sources" medical of severity from a other regulations, impairment. an "acceptable only C.F.R. 20 determinable sources may provide impairments claimant's but, impairment, and insight the into the §§ work, to ability See 20 especially where the evidence is complete and detailed. C.F.R. §§ "Other sources" may not establish the medically a of information establish may 416.913(a). 404.1513(a), existence security social the Under 404.1513(d), 416.913(d); SSR 06-03p. Plaintiff contends that the ALJ erroneously evaluated the opinion of Lynne Employment an Carter, with Specialist Inc., who conducted an assessment of Rehabilitation Consultants, plaintiff following her two-week work attempt through vocational rehabilitation. Ms. Carter noted that plaintiff has a strong skill set and would make a great employee, but for her irritable bowel syndrome causing absences. Ms. Carter noted that plaintiff worked only two hours of six before feeling sick. of Ms. Carter's plaintiff "feels caused report, she unpredictable employer expectations. 23 - OPINION AND ORDER vocational cannot absences work" rehabilitation As a result opined and that plaintiff's indicating Tr. 447. Tr. 448. an inability that nausea to meet Ms. Carter further opined that because plaintiff's medical condition was "unable to work at this time. ¢ Because JVls. Carter not stable, she was Id. an was source ¢ "other under the regulations, the ALJ was required to provide a germane reason for discounting Ms. Carter's opinion. F. 3d 1113, 1115-16 See, e.g., Bruce v. Astrue, 557 2009) (explaining standard for (9th Cir. witness testimony); Turner, 613 F.3d at 1223-24. lay Additionally, an ALJ must explain why "significant probative ¢ evidence has been rejected. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). The ALJ thoroughly discussed the information from vocational rehabilitation and rejected Ms. Carter's opinion because it was based upon plaintiff's self-reported symptoms. I have concluded that subjective complaints. reasons for rejecting the ALJ properly As discussed above, rejected plaintiff's When an ALJ provides clear and convincing the credibility of plaintiff's own statements, and the lay testimony is based upon those statements, it follows that the ALJ has provided "germane ¢ reasons. 574 F.3d at 694. Valentine, The ALJ did not err in rejecting Ms. Carter's opinion. IV. 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. 24 - OPINION AND ORDER See Bruce, 557 F. 3d at 1115; 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). The ALJ is required to account for competent lay witness testimony, and if it is rejected, provide germane reasons for doing so. Valentine, 574 F.3d at 694. Plaintiff's daughter, Amanda Crist, provided an April 3, 2010, Third Party Function Report in which she reported that she spends time with plaintiff watching television, talking and shopping; that plaintiff's pain and nausea keep plaintiff from sleeping; that plaintiff is able to cook and take care of her small trailer; and that plaintiff's nausea and depression keep plaintiff home much of the time. In an April 2010 letter, Ms. Crist indicated that plaintiff's chronic nausea was her biggest barrier to employment. The ALJ thoroughly provided by Ms. Crist discussed in the the information and letter decision and concluded that Ms. Crist's lay testimony largely echoed plaintiff's complaints, and was based on plaintiff's subjective symptoms. The ALJ findings are wholly supported by substantial evidence in the record. In light of my conclusion that the ALJ provided clear and convincing reasons to discredit germane plaintiff, reasons for it rejecting Valentine, 574 F.3d at 694. 25 - OPINION AND ORDER follows the that the ALJ has testimony of Ms. provided Crist. CONCLUSION For the reasons stated above, the Commissioner's decision denying benefits to plaintiff is AFFIRMED. final This action is DISMISSED. IT IS SO ORDERED. DATED this ~~day of JANUARY, 2014. 171~Marsh -1-m~ Malcolm F. United States District Judge 26 - OPINION AND ORDER
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