Veach v. Commissioner Social Security Administration, No. 3:2012cv00679 - Document 25 (D. Or. 2013)
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 07/10/2013 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON SUSANNA M. VEACH, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. SARA L. GABIN 14523 Westlake Drive Lake Oswego, OR 97035-7700 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Ave., Suite 600 Portland, OR 97204-2902 L. JAMALA EDWARDS Special Assistant United States Attorney Office of the General Counsel 701 Fifth Ave., Suite 2900, M/S 221A Seattle, WA 98105-7075 Attorneys for Defendant 1 - OPINION AND ORDER Case No. 3:12-cv-00679-MA OPINION AND ORDER MARSH, Judge Veach brings this action for judicial Plaintiff Susanna M. review of a final decision of the Commissioner of Social Security denying her applications for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C §§ (DIB) 401-403, and Supplemental Security Income (SSI) disability benefits under Title 42 U.S.C. XVI of the Social Security Act, Court has jurisdiction pursuant to 42 U.S.C. reasons that follow, the affirm I 1381-1383£. §§ 405(g). § final decision This For the of the Commissioner. FACTUAL AND PROCEDURAL BACKGROUND On January 14, plaintiff 2008, protectively filed applications for a period of disability and disability benefits, and supplemental security income. In both applications, plaintiff alleges disability beginning October 18, 2006, due to right knee degenerative joint disease or reflexive cervical degenerative disc disease, sympathetic dystrophy, nerve palsy with associated vision problems, Asperger's Syndrome, seasonal affective disorder, and hypertension. The claims were initially denied on June 4, 2008, and on reconsideration on September 9, 2008. Plaintiff filed a request for a hearing before an administrative law judge (ALJ). An ALJ held a video hearing on August 19, 2010, over which the ALJ presided in Eugene, .Oregon. 2 - OPINION AND ORDER Plaintiff appeared with her attorney and testified in Salem, Oregon. Mark A. A vocational expert, 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, but became disabled on that date pursuant to the medical- 2009, Contending the ALJ acted arbitrarily in vocational guidelines. finding plaintiff disabled only as of August 27, 2009, plaintiff sought Appeals Council The review. Council Appeals denied plaintiff's request for review on May 13, 2010, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review. Plaintiff was 55 years old as of the date of the hearing, and 56 on the date of the ALJ's decision. Plaintiff has a high school diploma and has attended three years of college. Plaintiff ha~ past relevant work as an in-home care attendant, security guard, pizza maker, and counter attendant in a cafeteria. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. 416.920. Each step Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. is potentially dispositive. at steps one through four. Admin., 574 F.3d 685, The claimant bears the burden of proof See Valentine v. Comm' r Soc. Sec. 689 (9th Cir. 2009); Tackett v. Apfel, 180 F. 3d 1094, 1098 (9th Cir. 1999). 3 - OPINION AND ORDER § At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through March 31, 2012. claimant seeking DIB benefits under Title II must establish 42 disability on or prior to the last date insured. A u.s.c. § 416(I) (3); Burch v. Barnhart, 400 F. 3d 676, 679 (9th Cir. 2005). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since her alleged onset of disability. See 20 C.F.R. §§ 404.1571 et seq., 416.971 et seq. At step two, the ALJ found that plaintiff had the following severe cervical impairments: spine degenerative disc disease, degenerative joint disease of the right knee, obesity, and hearing loss. See 20 C.F.R. §§ 404.1520(c), 416.920(c). At step three, the ALJ found that plaintiff's impairments, or combination of impairments did not meet or medically equal a listed impairment. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926. The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. and 416. 967 (b), kneel, except that plaintiff can §§ 404.1567(b) occasionally climb, crouch, and crawl, can occasionally reach overhead due to cervical spine disease, 4 - OPINION AND ORDER and should avoid concentrated noise See 20 C.F.R. exposure. §§ 404.1527, 404.1529, 416.927, 416.929. the ALJ found plaintiff unable to perform any At step four, See 20 C.F.R. past relevant work. §§ 404.1565, 416.965. The ALJ noted that prior to plaintiff's established disability onset advanced age, an was plaintiff date, individual closely approaching but that plaintiff's age category changed as August 27, 2009, her 55th birthday. of 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, experience, and considering plaintiff's functional residual age, capacity, 1vork education, jobs exist in significant numbers in the national economy that plaintiff could have However, performed. beginning August 27, 2009, after plaintiff's age category changed, there are no jobs that exist in significant numbers in the national economy that plaintiff can 20 C.F.R. 404.1560(c), 404.1566, 416.960(c), perform. See 416.966. Accordingly, the ALJ concluded that plaintiff was not §§ disabled prior to August 27, date, 2009, but became disabled on· that and has continued to be disabled through the date of the ALJ's decision. ISSUES ON REVIEW On appeal to this court, plaintiff contends the ALJ committed the following errors: (1) failed to find her reflexive sympathetic dystrophy knee impairment severe at Step Two, and failed to develop 5 - OPINION AND ORDER the record concerning the same; (2) improperly discredited her (3) failed to give the opinion of Mitchell Sally, M.D., testimony; controlling weight; (4) failed to properly consider the lay testimony of Rachel Rempel, plaintiff's sister; and (5) failed to include all of plaintiff's limitations in the RFC, resulting in a defective hypothetical to the VE. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. § 405(g); Andrews, 53 F.3d at 1039. 42 u.s.c. ftSubstantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a adequate to support a conclusion." 690. mind reasonable might Id.; Valentine, accept as 57 4 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. Comm'r of Soc. Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews, 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; ftthe court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Batson, 359 F.3d at 1193. 6 - OPINION AND ORDER DISCUSSION I. Step Two Plaintiff argues that the ALJ erred in failing to find her (RSD) reflexive sympathetic dystrophy knee impairment severe at In this case, the ALJ attributed plaintiff's alleged Step Two. right knee impairment to her well-documented degenerative joint of disease the right knee, finding it a severe impairment. Plaintiff alleges the ALJ additionally should have found her RSD a Plaintiff's argument fails for two severe impairment at Step Two. reasons. At Step Two, the ALJ First, the Step Two threshold is low. must determine whether a claimant has one or more impairments that significantly activities. 2005); his limit Ukolov v. 20 C.F.R. §§ or ability her 416.921. basic work conduct 420 F.3d 1002, Barnhart, 416.920(c), to 1003 (9th Cir. In this case, the ALJ resolved Step Two in plaintiff's favor, concluding that plaintiff had demonstrated impairments cervical spine, degenerative (degenerative disc disease of the joint disease of the right obesity, and hearing loss) necessary to satisfy Step Two. knee, 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, Step Two was resolved in her favor. as Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (any failure to list bursitis as severe at Step 7 - OPINION AND ORDER Two was harmless error where ALJ considered functional limitations of bursitis at step four); Burch, 400 F. 3d at 682 (any error in omitting obesity from list of severe impairments at Step Two was harmless because Step" Two \vas resolved in claimant's favor). Second, I reject plaintiff's argument that the record was inadequate for a determination as to her right knee impairment. See Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001) (the ALJ's "duty to further develop the record is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence."). In plaintiff's reply, she acknowledges that her treating physician, Jeremy Swindle, M.D., did not definitively diagnose RSD, but instead suspected RSD elements may be present. to plaintiff, According the ALJ should have developed the record further in order to definitively diagnose RSD. I disagree. Plaintiff's functional complaint limitations of were right knee considered its pain and by the ALJ alleged when he determined her degenerative joint disease of the right knee was severe at Step Two and when determining plaintiff's RFC. plaintiff has failed to identify any attendant Moreover, functional limitations specific to RSD that were not considered in the ALJ's discussion of her right knee degenerative joint disease. Thus, the record was not inadequate for the ALJ to make a decision at Step Two. To the extent that plaintiff contends the ALJ failed to 8 - OPINION AND ORDER properly evaluate the medical evidence or her alleged right knee impairment, I address those issues below. See 20 C.F.R. § 416.923 (once a claimant has surmounted Step Two, the ALJ must consider the functional limitations imposed by all medically determinable impairments in the remaining steps of the decision) . II. Plaintiff's Credibility To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two 20 C.F.R. stages of analysis. stage is 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. Comm'r Soc. Security Admin., 533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) . The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the arbitrarily discredit the claimant's testimony. F.3d at 1039; Thomas v. 9 - OPINION AND ORDER Barnhart, 278 F.3d 947, ALJ did not Tommasetti, 533 958 (9th Cir. 2002); Factors Shalala, Orteza v. the ALJ include determinations claimant 1 s consider may treatment when objective the history, 750 (9th making Cir. such 748, F. 3d 50 medical the claimant 1 s 1995). credibility the evidence, daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any medication, pain and relevant character evidence. Tommasetti, 533 F.3d at 1039. At the hearing, plaintiff testified that she began experiencing chronic knee pain following an injury she received when walking home from work. Plaintiff testified that the pain increases with overuse, such as walking, lifting heavy objects, and turning. Tr. 57. Plaintiff described her pain as typically a four on a 10-point scale, and that two or three times a week, the pain Tr. 57. increases to a seven. knee will give out Plaintiff testified that her right occasionally, and crutches for assistance when walking. that she uses canes or 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 Plaintiff stated that she needs to change positions due to pain. 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 Plaintiff further testified that she can sit in a recliner hours. for two to three hours. Plaintiff stated that she could Tr. 60. 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 Plaintiff noted that Tr. 201. customers, or perform housekeeping. 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. shop, and buys a Plaintiff described that she is able to little at a to time be able to carry it. Plaintiff noted she is able to read or work on the computer for 45 minutes at a time. In a pain questionnaire, plaintiff described aching, burning and tingling in her neck, hands, knees, and right leg that occurs with overuse. In the medically decision, determinable the ALJ concluded impairments that that could plaintiff has reasonably be expected to produce some symptoms, but that plaintiff's statements concerning the intensity, persistence, those symptoms are not entirely credible. 11 - OPINION AND ORDER and limiting effects of Plaintiff complains that the ALJ erroneously determined that she is not credible citing the ALJ's boilerplate language which provides "the claimant's ... statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they inconsistent are the with 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) reaching a conclusion." (D. Or. Mar. Bostic v. Astrue, explanation and then 2012 WL 786909, at *l 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 2012 WL 5037257, *3 (D. Or. Sept. 29, 2012), adopted, 2012 WL 4966462 (D. followed by sufficient reasoning." Cruise v. Astrue, 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. 12 - OPINION AND ORDER Accordingly, I examine the ALJ's whether to determine reasoning is it supported by substantial evidence and free of legal error. The ALJ discounted credibility plaintiff's inconsistent statements of knee pain. based on her 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, nortriptyline, scale. Tr. 65. later on, plaintiff testified that with her her knee pain is at a one to three on a 10-point 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. supported in the record. Tr. 295. The ALJ's findings are wholly Thus, the ALJ could reasonably discount plaintiff's credibility based on her inconsistent allegations of disabling pain. See Tommasetti, 533 F.3d at 1040 (plaintiff's credibility can be discounted where medical evidence demonstrated favorable response to medications and conservative treatment). The ALJ detailed numerous other inconsistencies in the record. For example, the ALJ discussed that plaintiff alleged she could not 13 - OPINION AND ORDER 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. The ALJ also described Tr. 28, 62-63. several between inconsistencies 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., 600 (9th Cir. 1999). 169 F.3d 595, 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, wheelchair to the exam table. and easily transferred from the Indeed, a review of plaintiff's medical records from her treating physician, Dr. Swindle reveals that he prescribed a brace, not a wheelchair, for her alleged knee instability. Tr. 249. I conclude that the ALJ's determination that the medical evidence undermined plaintiff's allegations about the severity of her knee impairment is supported by substantial evidence. See Chaudry v. 14 - OPINION AND ORDER As true, 688 F. 3d 661, 671 (9th Cir. 2012) (ALJ properly discounted plaintiff's credibility based on nonprescribed use of wheelchair) . The ALJ also appropriately discounted plaintiff's credibility on the basis working. that her alleged depression prevented her from 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 challenge. depression, Tr. 297-98. a finding that plaintiff does not 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. 674 ~.3d Molina v. Astrue, 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 2007, for knee pain and difficulty walking. the results of an MRI conducted on ~ebruary ~ebruary 20, Dr. Currie reviewed 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. 15 - OPINION AND ORDER Plaintiff argues that the ALJ should have given her complaints of pain greater weight because Dr. Currie also noted "plenty" of evidence of degenerative changes and diagnosed osteoarthritis. I conclude that the ALJ accurately summarized Dr. findings. Currie's 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, guessing. and this court may not engage in second- Parra, 481 F.3d at 746. Additionally, the ALJ found that plaintiff's activities of daily living are inconsistent with the level of disability she is alleging. An ALJ may consider inconsistencies in a claimant's testimony or between the testimony and a claimant's activities when assessing credibility. Molina, 674 F.3d at 1113; Berry v. Astrue, 622 F.3d 1228, 1235 (9th Cir. 2010) (inconsistencies between selfreported symptoms and activities supported adverse credibility determination) . The ALJ discussed that plaintiff testified that she cannot walk or stand for four hours in a day, that it takes her two hours to walk two miles and that she needs to take many breaks. the ALJ noted that in plaintiff's function report, 16 - OPINION AND ORDER However, she described extensive daily activities, such as reading, chores, preparing meals, and mowing the lawn. doing household The ALJ found this inconsistent with plaintiff's testimony that she regularly walks to the library. Plaintiff contends that her statements are not contradictory because she testified that she takes breaks every 30 minutes when doing chores, that she uses canes as support >vhen walking, and that although she can walk two to three miles, her knee hurts after just a half mile. However, as the ALJ noted, plaintiff inconsistently reported that she can be active for seven hours before needing to On rest. conclude balance, the that Carmickle, 533 after ALJ F.3d at reviewing rationally 1165. the record interpreted The ALJ has as a the whole, I evidence. cited numerous activities, such as plaintiff's ability to prepare meals, perform household chores, read and type on the computer, and go shopping on a regular basis, which indicate that functional capacity than she alleged. 261 F. 3d 853, 857 (9th Cir. plaintiff had a greater See Rollins v. Massanari, 2001) (ALJ may reject the claimant's testimony when inconsistent with the claimant's daily activities and contrary to the medical evidence) . I further conclude that even if the ALJ erred in discrediting plaintiff based on her activities of daily living, any such error is harmless. adverse The remaining reasons supplied by the ALJ for the credibility determination are 17 - OPINION AND ORDER supported by substantial Because those remaining reasons, evidence in the record. when taken together, still amount to clear and convincing evidence, the ALJ's adverse credibility determination must be sustained. See Carmickle, 533 F.3d at 1162; Batson, 359 F.3d at 1197. III. Physician's Opinions To the reject examining physician, uncontroverted of opinion treating a or the ALJ must present clear and convincing Bayliss v. reasons for doing so. 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, legitimate reasons. this Bayliss, it may be rejected by specific and detailed summary burden by providing a conflicting medical evidence, An ALJ can meet 427 F.3d at 1216. of the facts and 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 An ALJ also may discount a physician's opinion that is at 7 51. based on a claimant's discredited Tommasetti, 533 F.3d at 1040. 18 - OPINION AND ORDER subjective complaints. Plaintiff argues that the ALJ erred in failing to adopt the On May 10, 2008, Dr. opinion of Dr. Sally, an examining physician. 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 Dr. Sally also found that plaintiff did not lifting restrictions. need to be in a wheelchair, despite that plaintiff appeared in one Plaintiff informed Dr. for the examination. been advised to "stay off her knee." Dr. Sally that she had noted Sally 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. 19 - OPINION AND ORDER Notably, plaintiff does not challenge the ALJ's analysis of Dr. Swindle's opinion. Dr. Sally's opinion also was contradicted by the opinions of the state reviewing physicians, Lahr, B. Martin M.D., and Linda L. who found Tr. 305, 329. Thus, Jensen, plaintiff could stand and walk for six hours. M.D., the ALJ was required to provide specific and legitimate reasons for discounting Dr. Sally's opinion. The ALJ could discount Dr. Tommasetti, 533 F.3d at 1041. Sally's opinion because it was inconsistent with the medical evidence in the record. wholly by supported substantial The ALJ's evidence the in findings are record. The ALJ provided a detailed review of all the medical evidence of record. For example, the ALJ discussed that in June 2007, plaintiff sought emergency room treatment for knee pain after falling down on her walk home from work. described that she had Plaintiff walked to the hospital, and When the fallen four days earlier. 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 20 - OPINION AND ORDER that Dr. Swindle did not feel that disability was until appropriate after medication other and The ALJ also noted orthopedic interventions had been exhausted. that plaintiff reported to Dr. Stoltzfus that she experiences no knee pain with nortriptyline. Currie and Dr. Moreover, as discussed above, Dr. Swindle noted the lack of serious findings with respect to her degenerative joint disease. And, as the ALJ noted, plaintiff consistently demonstrated a full range of motion in the right knee. Thus, I conclude the ALJ cited specific and legitimate reasons for discounting the opinion Dr. Sally. To the extent that the ALJ rejected Dr. Sally's opinion because it was not supported by medically acceptable clinical and diagnostic techniques, the ALJ' s substantial evidence in the record. decision is supported by not A review of Dr. Sally's report indicates that he performed several objective tests, Romberg test, range of motion tests, leg raises, grip strength tests, and others, during his examination of plaintiff. any such error is harmless. such as the However, As noted above, the inconsistency with the medical evidence alone is a specific and legitimate reason for discounting the opinion of Dr. Sally. See Molina, 674 F.3d 1117 (court will not reverse for errors that are "'inconsequential to the ultimate nondisability determination.'") (quoting Carmickle, 533 F. 3d at 1162) . /Ill Ill/ 21 - OPINION AND ORDER 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, reasons for doing so. and if he rejects it, to provide germane Valentine, 574 F.3d at 694; Dodrill, 12 F.3d at 919. In this case, plaintiff contends that the ALJ inappropriately discounted the testimony of Rachel Rempel, plaintiff's sister. her opening brief, plaintiff acknowledged that Ms. In 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 same complaints. rationale the ALJ rejected Ms. Rempel's testimony in when rejecting plaintiff's subjective 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. well. 22 - OPINION AND ORDER Rempel's testimony on that basis as To the extent that the ALJ erred in failing to separately explain his rationale for rejecting Ms. such error is harmless. Rempel's testimony, Molina, 674 F.3d at 1115. any 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 Compare Tr. to plaintiff's subjective complaints. Tr. 200-08. 213-218 with Thus, in light of my conclusion that the ALJ provided clear and convincing reasons for rejecting plaintiff's subjective complaints, and that Ms. complaints, it follows Rempel's testimony is similar to those that discounting her testimony. the ALJ gave germane reasons for Valentine, 574 F.3d at 694 (where ALJ has provided clear and convincing reasons for rejecting plaintiff's testimony, those reasons are equally germane to similar to testimony by lay witness); Molina, 674 F.3d at 1117 (same). V. VE Testimony As discussed above, I have concluded that the ALJ did not err in the fashioning of plaintiff's RFC. Because the hypothetical posed to the VE included all of those limitations which the ALJ deemed to be credible and consistent with the medical evidence, the ALJ could reasonably 23 - OPINION AND ORDER rely upon the VE' s testimony. Stubbs- Danielson, 539 F.3d 1169, 1175-76 (9th Cir. 2008); Valentine, 574 F. 3d at 694. CONCLUSION For the reasons stated above, the Commissioner's decision denying benefits to plaintiff is AFFIRMED. final This action is DISMISSED. IT IS SO ORDERED. DATED this ~day of JUNE, 2013. ~~-7-f?r~ Malcolm F. Marsh United States District Judge 24 - OPINION AND ORDER
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