Ivy v. Commissioner Social Security Administration, No. 3:2012cv01351 - Document 23 (D. Or. 2013)
Court Description: OPINION AND ORDER. For the foregoing reasons, the decision of the ALJ is AFFIRMED. IT IS SO ORDERED. Signed on 09/10/2013 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON 3:12-cv-01351-MA TIMOTHY W. IVY, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. LISA R. J. PORTER KP Law LLC 16200 S.W. Pacific Highway, Suite H-280 Portland, Oregon 97224 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 RICHARD RODRIGUEZ Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900, M/S 221A Seattle, Washington 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER OPINION AND ORDER MARSH, Judge Plaintiff, Timothy W. brings this action for judicial Ivy, review of a final decision of the Commissioner of Social Security his denying Commissioner) (the applications disability for insurance benefits (DIB) under Title II of the Social Security Act (the and Act) security supplemental benefits under Title XVI of the Act. 1381-1383f. 405 (g) . income disability (SSI) See 42 U.S.C. §§ 401-434, This court has jurisdiction pursuant to 42 U.S.C. For the reasons set forth below, I affirm the § final decision of the Commissioner. PROCEDURAL BACKGROUND Plaintiff protectively filed his applications for SSI and DIB on February 24, 2009, alleging disability due to a ft[r)ight knee Tr. 172. His applications were denied initially and upon reconsideration. A hearing was held before an condition and lower back." Administrative Law Judge (ALJ) on June 2, 2011, at which plaintiff was represented by counsel and testified. Nadine Tunget, plaintiff's wife, In addition, testified at the Dorothy hearing. Vocational Expert (VE) C. Kay Wise was also present throughout the hearing and testified. On July 8, 2011, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Council declined review of the ALJ's decision, filed a complaint in this court. 2 - OPINION AND ORDER After the Appeals plaintiff timely FACTUAL BACKGROUND Born on February 23, 1982, plaintiff was 26 years old on the alleged onset date of disability, and 29 years old on the date of the hearing. Tr. 167. Plaintiff has a high school education and past relevant work as a Service Attendant, Tire Technician, Glass Stacker, and Taxi Driver. Tr. 36-37, 177. Plaintiff alleges his conditions became disabling on August 15, In 2008. addition to his hearing testimony, plaintiff submitted an Adult Function Report and a series of forms supplied by his attorney. Tr. 180-87, 216-75. Plaintiff's wife, Dorothy Tunget, testified at the hearing and submitted a Witness Statement. Tr. 309-16. In addition, Leona Sisson and Dwight D. Crow submitted Witness Statements on plaintiff's behalf. As relevant to this case, plaintiff and Assessment. submitted Tr. a 451-69. Tr. 298-305, 306-08. Jill E. Spendal, Learning Disorder Psy.D., examined and Psychological Maria Armstrong-Murphy, M.D., examined plaintiff and submitted a Comprehensive Musculoskeletal Evaluation. Tr. 471-80. Robert A. Kruger, Psy.D., also examined plaintiff and submitted an evaluative opinion. Tr. 484-94. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step process for determining whether a person is disabled. Yuckert, 482 u.s. 404.1520 (a) (4) (i)- (v), 3 - OPINION AND ORDER 137' 140-42 (1987); 416.920(a) (4) (i)-(v). 20 Each sequential Bowen v. C.F.R. step §§ is The claimant bears the burden of proof at potentially dispositive. Steps One through Four. The burden shifts to the Commissioner at Step Five to Cir. 1999). a show that Tackett v. Apfel, 180 F.3d 1094, 1098 (9th jobs number of significant exist national in the See Yuckert, 482 U.S. at economy that the claimant can perform. 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined that plaintiff has not engaged in gainful substantial See 20 C.F.R. August 15, 2008. since the activity alleged onset 404.1571 et seq., §§ date, 416.971 et seq.; Tr. 24. At Step Two, the ALJ determined that plaintiff's "bipolar disorder; personality disorder; generalized anxiety disorder/panic disorder; borderline intellectual functioning; alcohol dependence in remission; knee obesity and status post right severe impairments. See 20 C.F.R. §§ are surgery" 404.1520(c), 416.920(c); Tr. 24-25. At Step Three, the ALJ determined that plaintiff does not have an impairment or combination of impairments that meet or medically any equal listed See impairment. 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920 {d), 416.925, 416. 926; Tr. 25-27. The ALJ found capacity pounds, (RFC) and approximately that the residual work; can frequently pounds; stand perform light occasionally lift to six hours 4 - OPINION AND ORDER functional plaintiff has in an 10 eight hour workday; lift and sit 20 walk for approximately six hours in an eight hour workday; and frequently stoop, but only occasionally climb, and plaintiff limited additionally ALJ The 27. Tr. crawl. crouch, to kneel, balance, unskilled work, defined as routine, repetitive tasks with simple and further limited plaintiff to only occasional, instructions; brief with contact and public no Tr. 27-36. requires no more than simple arithmetic or reading. At Step and coworkers, Finally, the ALJ limited plaintiff to work that Id. teamwork. general the relevant perform any past unable the ALJ found that plaintiff is Four, work. See C.F.R. 20 §§ to 404.1565, 416.965; Tr. 36-37. At Step Five, the ALJ found that however, jobs exist in significant numbers in the national economy that plaintiff can perform, including Cardboard Inserter, Inspector of Small Products, See 20 C.F.R. and Bench Worker. §§ 404.1569, 404.1569(a), 416.969, 416.969(a); Tr. 37-38. Accordingly, the ALJ found that plaintiff was not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff makes three primary arguments on appeal. First, plaintiff argues that the ALJ erroneously discredited plaintiff's testimony by discredit his activities of failing to cite testimony, daily 5 - OPINION AND ORDER living clear and and and convincing improperly ability to citing work reasons to plaintiff's while taking Second, plaintiff asserts the ALJ improperly weighed medications. the medical testimony by rejecting the opinions of Drs. Spendal and Suckow. Third, maintains plaintiff Sisson, discredited the lay opinions of Ms. Tunget. Accordingly, was hypothetical plaintiff because inadequate vocational the not did it and Ms. Crow, Mr. that concludes erroneously ALJ the that include the if the limitations contained in the rejected testimony. STANDARD OF REVIEW affirm the Commissioner's The court must decision Commissioner applied proper legal standards and the findings are supported by substantial evidence in the 405(g); Andrews v. 53 F. 3d 1035, Shalala, 42 record. 1039 u.s.c. (9th Cir. § 1995). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." court must weigh all of the evidence, whether detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). to more than one rational decision must be upheld. supports The or Martinez v. Heckler, If the evidence is susceptible interpretation, Andrews, it Id. 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." 1156 (9th Cir. 2001). 6 - OPINION AND ORDER Edlund v. Massanari, 253 F.3d 1152, DISCUSSION I. Plaintiff'S Testimony Plaintiff argues the ALJ erred in rejecting his subjective symptom testimony. As part of this argument, plaintiff asserts the ALJ improperly found that plaintiff could return to work when compliant with prescribed treatment and that plaintiff's activities of daily living were evidence of ability to perform full-time work. In deciding whether to accept subjective symptom testimony, an ALJ must perform two stages of analysis. 20 C.F.R. § 404.1529. First, the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Cir. 1996). Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Second, absent a finding of malingering, the ALJ can reject the claimant's testimony about the severity of his symptoms only by offering specific, clear, and convincing reasons for doing so. Id. at 1281. If an ALJ finds that the claimant's testimony regarding his subjective symptoms is unreliable, the "ALJ must make a credibility the reasons why the testimony is determinatio n citing unpersuasive ." Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). In doing so, 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] 7 - OPINION AND ORDER Thomas v. Barnhart, 278 F.3d 947, 958 (9th claimant's testimony." ALJ The 2002). Cir. credibility evaluation may rely in weighing the of techniques ordinary upon claimant's credibility. Tommasetti v. Astrue, 533 F. 3d 1035, 1039 (9th Cir. 2008). At the hearing, plaintiff testified that he earned his high school schooling. was but diploma, special in education his throughout As to his reasoning for quitting his last job, Tr. 51. plaintiff stated he quit because he "couldn't deal with the people anymore." Tr. At that time, 53. plaintiff stated that he was 61. Tr. "extremely irritable, edgy," and " very argumentativ e." Plaintiff stated that his biggest limitations are that he does not very "work well concentration , in social memory, environments ," following and and struggles with Tr. 55. directions. Plaintiff reported that he was not taking medication or seeing a mental health professional at the time of the hearing because he "lack[ed] the drive to do it." Id. When taking his medication, plaintiff reported his moods are more stable, although toward the end of his medication regimen he testified that he was having difficulty "motivating. " Tr. 58. Plaintiff stated that he struggles to comprehend the newspaper, and does not read much because he has trouble understanding what he reads. Tr. depressed, 62-63. he goes Plaintiff stated that although he is often through manic extremely active and irritable. 8 - OPINION AND ORDER periods Tr. 66-67. during which he is plaintiff reported that in a In his Adult Function Report, typical day he will "get up, [Laundromat) drive to a go to the bathroom find a place to sit in the car [where) I won't be bothered Tr. by anyone." Before plaintiff's 180. set conditions in, plaintiff reported that he could "stand and walk and lift heavy items," but no longer can. Tr. 181. Plaintiff reported that pain and panic attacks sometimes disrupt his sleep, and that he cannot dress or bathe himself because of pain. Id. Plaintiff checked that his conditions affect his abilities to lift, stand, walk, reach, kneel, talk, hear, squat, climb stairs, bend, remember, complete tasks, concentrate, understand, follow instructions, and get along with others. Tr. 185. Plaintiff reported that he can walk one-half of a mile before needing to rest for "3 hours if I am lucky." Plaintiff additionally stated that he can only pay Id. attention for 5 minutes, does not follow spoken instructions well, has trouble getting stress poorly. along with authority figures, and handles Tr. 185-86. The ALJ rejected plaintiff's testimony because several of plaintiff's allegations were inconsistent with other statements and evidence in the record, inconsistent with his wife's testimony, and because plaintiff demonstrated secondary gain motives in seeking medical treatment for the purpose of establishing documentation for his disability application. I conclude that the ALJ's reasons for rejecting plaintiff's testimony are clear and convincing. 9 - OPINION AND ORDER was ALJ The correct that plaintiff inconsistent made plaintiff As the ALJ noted, statements throughout the record. alleged in his Adult Function Report that he was unable to dress himself, but later indicated that he only had some difficulty dressing himself, and again that he only sometimes had difficulty putting on a shirt or pants and that putting on shoes and socks took additional as Similarly, suffered from elsewhere. addition, time. the ALJ paranoia Compare noted, also some on 181 Tr. plaintiff forms, 221, Tr. with 235. he alleged that denied paranoia but Compare Tr. 185, 225, 227, 425 with Tr. 379, 511. In as the ALJ noted, plaintiff made several inconsistent statements about why he left his prior job; ranging from because he could not "deal with the people anymore," to the physical ailments in his right knee and lower back, to because he was "planning to move away, and [) wasn't physically able to keep up with the job because of [) knee problems." educational history, See Tr. As to his 53, 172, 487. plaintiff testified that he was in special education classes throughout his schooling, but had earlier told Dr. Spendal that he did "not [receive) much in the way of support services" in school, and "recalled being predominantly in mainstream classes," and reported to Dr. Kruger that while he was "'supposed to get "described himself special as being setting."'T r. 51,452,487. 10 - OPINION AND ORDER education classes'" involved in the in school, regular he classroom The ALJ also noted inconsistent statements in plaintiff's For instance, presentation to mental health· professional s. on February 17, 2009, plaintiff presented to Marvin Roman, M.D., for "possible depression symptoms," but noted that his only symptoms were outbursts of irritability and anger, but otherwise he had good energy, sleep, and appetite. Tr. 381. Dr. Roman concluded that "[o]n initial exam I don't think this patient has depression," and Id. opined that plaintiff likely has "anger issues." Less than a month later, however, plaintiff presented to establish care with Claudia Rodriguez, QMHP, reporting a ten-year history of panic attacks, "excessive worry," "autonomic hyperactivity resulting from anxiety" that affects his daily interrupted functioning, insufficient sleep, and poor appetite and energy. Tr. 441. and It is also notable that these presentation s took place within a short period after plaintiff applied for disability. The ALJ reasonably cited plaintiff's inconsistent statements as a reason to reject his testimony. The ALJ's finding that plaintiff demonstrated secondary gain motives in seeking medical treatment for the purpose of obtaining evidence for his disability application is also amply supported in the record. On June 18, 2009, plaintiff told Dr. Suckow that one of his reasons for coming to the psychiatric evaluation was that he "applied for disability and was denied; [plaintiff] is working on obtaining an attorney and states he was told by one lawyer he 11 - OPINION AND ORDER talked to that he 'needed to get a doctor.'" On August Tr. 427. 17, 2009, Dr. Roman noted that plaintiff's knee showed only normal post-surgica l changes, but that plaintiff made weekly doctor visits because "he needs a form signed to certify that he's seeing any doctor regularly." On September Tr. 374. 14, agreed plaintiff 2009, have to his psychiatric medication management turned over to his primary care provider, but Dr. Suckow noted that plaintiff "might have [second) standpoint thoughts from the applying for disability and that he has been psychiatrist , apparently by his attorney." is actively apparently encouraged Tr. 409. to see a The next day, plaintiff asked Rachel Schooler, QMHA, to "meet weekly to fulfill DHS requirements so he won't have to look for a job," despite there being "no clinical reason for us to meet weekly." Tr. 408. On December 14, 2009, after Dr. Suckow recommended turning over his psychiatric care to his primary care provider, concern was 406. [the] Moreover, I impact on [his) plaintiff's "one disability application." Tr. note that despite the longstanding nature of plaintiff's allegations, there is very little evidence of plaintiff seeking medical or mental health treatment before he applied for disability benefits in February of 2009. plaintiff's allegations because he The ALJ's rejection of demonstrated secondary gain motives in seeking medical treatment is amply supported by the 12 - OPINION AND ORDER record and constitu tes a compelli ng reason to reject plainti ff's testimon y. Finally, the ALJ rejected plainti ff's testimon y because it was inconsi stent with his wife's testimon y at the hearing. Indeed, plainti ff's allegati ons of severe limitati ons are belied by Ms. Tunget's testimon y that plaintif f could work on cars for eight hours per day, forty hours per week, as long as he does not have to work with other people. Tr. 74. Plainti ff's argumen t that the ALJ imprope rly cited plainti ff's activiti es of daily living and stabilit y on his medicat ion regimen t to reject his testimon y is unavail ing.' An ALJ may cite noncomp liance with prescrib ed medical treatmen t, or failure to seek treatme nt, medical to a plainti ff's. allegati ons of Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. disablin g limitati ons. 1989) . discred it As the ALJ cited, plaintif f disconti nued his own medicati on regimen on more than one occasion and had signific ant gaps of time in the medical record where he did not seek treatme nt. 502, 505. Moreove r, See Tr. the ALJ was correct that plainti ff admitted being more stable when complian t with his medicati on regimen. 406, 492 Tr. ("It is also importan t to note that [plainti ff] reported that, mentally , he does much better when he is complian t with his To the extent plainti ff argues that the ALJ referenc ed these reasons as an independ ent basis to reject his disabili ty claim, rather than as part of the rational e for the credibi lity Both citation s were made determi nation, plainti ff is mistaken . Tr. 29-30, 33. lity analysis . in the course of the credibi 1 13 - OPINION AND ORDER These citations by the ALJ were relevant to medicatio n regimen." ). plaintiff 's discrediti ng the Additiona lly, testimony . ALJ permissib ly cited inconsiste ncy between plaintiff 's activities of and alleged Astrue, 674 living daily Molina v. to limitation s F.3d reject 1112-13 1104, his (9th testimony . Cir. 2012). Nonethele ss, even if these reasons were not valid reasons to reject plaintiff 's testimony , such error would have been harmless because the other reasons discussed above constitute clear and convincing In sum, reasons for rejecting plaintiff 's testimony . I conclude that based on the above cited reasons, the ALJ properly discredite d plaintiff 's testimony . II. Considera tion of Medical Testimony Plaintiff next argues that the ALJ erroneous ly weighed the medical opinions of Drs. Spendal and Suckow. The Commissio ner must provide clear and convincing reasons to reject the uncontrad icted Lester v. Chater, 81 opinion of a treating or examining physician . F. 3d 821, 830-31 (9th Cir. 1995). Where a physician 's opinion is contradic ted by that of another physician , the ALJ may reject the physician 's opinion by providing specific and legitimate reasons supported by substanti al evidence in the record. "'The including conclusory , ALJ a need not treating and accept physician , inadequat ely the if opinion that supported by of Id. any opinion clinical Chaudhry v. Astrue, 688 F. 3d 661, 671 (9th Cir. 2012) 14 - OPINION AND ORDER physician , is brief, findings. '" (quoting Bray v. Comm'r Soc. Sec. Admin., 554 F. 3d 1219, 1228 (9th Cir. 2009)). . . the record contains conflictin g medical evidence, the "'Where ALJ is charged with determinin g credibilit y and Id. conflict. '" (9th Cir. resolving the (quoting Benton v. Barnhart, 331 F.3d 1030, 1040 The ALJ is responsib le for 2003)). translatin g the claimant' s medical condition s into functiona l limitation s in the See Stubbs-Da nielsen v. Astrue, 539 F.3d 1169, 1174 (9th Cir. RFC. Ultimately , the RFC is sufficien t if it is "consiste nt with 2008). restrictio ns identified in the medical testimony ." Id. Dr. Spendal A. On December 16, 2009, plaintiff was referred to Dr. Spendal for a Learning Psycholog ical and Services. Human of Departmen t Disorder After Assessmen t extensive ly plaintiff 's history and conducting a thorough exam, by the reviewing Dr. Spendal diagnosed plaintiff with "Bipolar I Disorder, Generalize d Anxiety Disorder, and Panic Disorder without Agoraphob ia," as well as a Personali ty addition, Disorder, Dr. not otherwise specified . Tr. 465. In Spendal noted "some extreme deficits in cognitive functionin g." According ly, Dr. Spendal noted that plaintiff Id. will "struggle with comprehen sion and reasoning tasks," will be "slower to process informatio n than the majority of his peers," and will "need to be spoken to in clear and concise repetition 1vill be important ." that plaintiff has "notable 15 - OPINION AND ORDER and Dr. Spendal also noted Tr. 4 66. deficits language in visual attention and therefo re visual memory ," and that "[h]is audito ry memory is also not "is plaint iff such, As Id. poor." extrem ely consid ered a Spenda l conclud ed that compe titive candid ate for Dr. employ ment," and that his "socia l diffic ulties and anxiet ies as well as his mood labilit y would stop him from being a consis tent Tr. employ ee." examin ation, answer ed in Dr. a Notably , howeve r, 467-68 . noted Spenda l comple tely that forthri ght in the course of the plaint iff "may not have manner ," and that the interp retive hypoth eses presen ted in this report may overre presen t the extent and degree of areas." signifi cant test finding s in certain Tr. 461-62 . The ALJ rejecte d Dr. Spenda l's opinion becaus e it was based, Tr. 33- at least in part, on plaint iff's unrelia ble self-re port. 35. Becaus e Dr. Spenda l's assessm ent was contra dicted by that of Dr. Kruger , the ALJ was require d to cite specif ic, reason s to reject her opinion . legitim ate I conclud e the ALJ did so. As discus sed above, the ALJ approp riately rejecte d plaint iff's testimo ny on accoun t of a number of incons istenci es in the record . Some of those incons istenci es related direct ly to reports made to Dr. Spenda l, educat ional such as plaint iff's incons istent reports about his history . Tr. 452. Moreov er, the ALJ noted that questio ns were raised about the veraci ty of plaint iff's respon ses and the genuin eness of his effort in testing in the exams of both Drs. Spenda l and Kruger . 16 - OPINION AND ORDER Tr. 456-57, 461-62 , 489-92. The ALJ's notations in this respect are particula rly relevant to weighing Dr. Spendal's report because it is clear that much of Dr. Spendal's testing relied on the veracity of plaintiff 's reporting and full participa tion as testing, in Spendal Dr. noted that due to potential poor effort on testing "it is possible that the clinical scales may over-repr esent psychopat hology." account for because 462. Tr. exaggerate Nonethele ss, uncertain ties these in the Dr. her actual it was based on plaintiff 's reporting and participa tion in examinatio n. degree of Spendal did not conclusion s The ALJ reasonably discredite d Dr, recommend ations. report or and Spendal' s unreliable self- This is a specific and legitimate reason, supported by substanti al evidence to reject Dr. Spendal's report. 2 Ill The parties expend considera ble effort discussing whether it was proper for Dr. Kruger to perform testing designed to Plaintiff measure the validity of plaintiff 's alleged symptoms. ly that the ALJ could not consider such argues incorrect I note that both informatio n in weighing the medical testimony. testing related to symptom Drs. Kruger and Spendal included some validity in their examinatio ns. While it is true that the SSA Program Operation s Manual System generally instructs ALJs not to purchase symptom validity tests (SVT), there is nothing in the record demonstra ting that the ALJ affirmativ ely purchased SVT in this case, as opposed to SVT merely being a part of the See comprehen sive testing performed by Drs. Kruger and Spendal. SSA POMS DI 22510.006 , available at 2001 WL 1933148. More to the point, however, the POMS makes clear that "[w]hen the results of SVT are part of the medical evidence of record, we consider them along with all of the relevant evidence in the case record." Thus, the ALJ did not err in considerin g the symptom validity testing present in the examinatio ns of Drs. Spendal and Kruger. 2 17 -OPINION AND ORDER Dr. Suckow B. Plaintiff the to appears opinion rejecting Dr. argue that the ALJ plaintiff's Suckow, erred in treating Although it is not entirely clear from plaintiff's physician. briefing, of next it appears the opinion plaintiff refers to is a chart note from Dr. Suckow dated December 14, 2009, in which Dr. Suckow opined "in my professional opinion, given his [history) and his MSE even with good symptom control, patient would likely not be able to maintain employment and [would) at be fairly high risk for a relapse of his symptoms secondary to his chronic mental illness." Tr. 406; see also Tr. 428 (expressing a very similar opinion). The ALJ rejected Dr. opinion Suckow's because it was a conclusory statement that does not provide specific limitations, and because in the same chart note Dr. Suckow discharged plaintiff to his primary care provider for medication management, suggesting Dr. Suckow believed plaintiff was more stable than his opinion otherwise suggests. 35. Tr. As an initial matter, I question whether Dr. Suckow's chart note is medical testimony, or rather just one piece of medical consider in the medical record. evidence that the ALJ must Even if Dr. Suckow's opinion is medical testimony that the ALJ could only reject by providing specific and legitimate reasons, I find the ALJ met this standard. The ALJ was correct that Dr. Suckow's opinion was conclusory, and failed to provide specific limitations. 18 - OPINION AND ORDER Dr. Suckow provided little more in his opinion than the conclusion that he does not believe plaintiff can work because of his mental health conditions. This is precisely the type of conclusory opinion the ALJ need not accept. See reasonably Chaudhry, found that 688 Dr. F.3d at Moreover, 671. Suckow's discharge of the ALJ plaintiff's psychological care to his primary care physician indicated that plaintiff's mental impairments were not so severe as to be The ALJ properly considered Dr. Suckow's chart note. 3 disabling. III. Lay Testimony Plaintiff finally argues that the ALJ erred in his consideration of the lay testimony from Dorothy Tunget, Dwight D. Crow, and Leona Sisson. symptoms or how an Lay testimony regarding a impairment a'ffects her ability to work is competent evidence that an ALJ must take into account. F. 3d at 1114. Molina, 674 To discount lay witness testimony, the ALJ must give reasons that are germane to the witness. A. claimant's Id. Ms . Tunget Dorothy Tunget, plaintiff's wife, testified at the hearing and submitted an additional Witness Statement. 3 At the hearing, Ms. Plaintiff argues that the ALJ could not reject Dr. Suckow's note because it was conclusory and did not ascribe any ascertainable functional limitations because doing so would trigger the ALJ's duty to develop the record. I disagree, however, because Dr. Suckow's brief opinion is not the sort of ambiguous evidence that triggers the ALJ's duty to develop the record. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) . 19 - OPINION AND ORDER Tunget testified that plaintiff cannot work because he does not "get along with people very well," has problems with authority, and does not follow instructions well. Tr. 70. Ms. Tunget testified that plaintiff has outbursts of anger approximately four times per week from which it takes him between ten minutes and one hour to calm down. Tr. 70-71. Ms. Tunget reported that plaintiff can work on his car for eight hours per day, but cannot do so working with others and has occasional outbursts of anger. Tr. 74-75. In her Witness Statement, Ms. Tunget indicated that plaintiff has marked restrictions in each of his mental capacities, and stated that plaintiff's concentration, persistence, and pace problems cause him to forget what he is doing in the middle of an activity. Tr. 309- 16. The ALJ rejected Ms. Tunget's testimony because it was internally inconsistent and inconsistent with other of plaintiff's self-reports. As plaintiff work can the on ALJ noted, his car Ms. for Tunget' s eight testimony hours per that day is inconsistent with her report that he has such marked concentration, persistence, or pace difficulties that he forgets what he is doing in the middle of an activity. Tr. 74, 309-11. Moreover, as the ALJ also noted, Ms. Tunget's testimony that plaintiff "doesn't go out actually at all except when we go get gas or go to the grocery store," is contradicted by statements plaintiff made to treating sources that he visits his son weekly at his parents' house, was 20 - OPINION AND ORDER planning to go to Burns, Oregon in the friend, to and weekend. took Tr. a 71, trip 424, 430. eastern summer to work with a Oregon over Memorial Day The ALJ cited germane reasons to reject Ms. Tunget's testimony. B. Ms. Sisson Leona Sisson submitted a Witness Statement reporting that she has known plaintiff for 17 years, and currently sees him twice per month. Ms. Sisson indicated that plaintiff has marked impairments in overall his functionality, living, social functioning, 298-301. Ms. as well as activities of daily and episodes of decompensation. Tr. Sisson additionally stated that plaintiff cannot cook, go shopping, bathe, or shave for himself. The ALJ rejected Ms. Sisson's Tr. 305. statement because there is little in the record establishing what foundation she has .for her knowledge of inconsistent plaintiff's with other functioning record and evidence. her testimony Indeed, Ms. was Sisson admitted in her statement that she only sees plaintiff twice per month. Tr. 298. Additionally, there is nothing establishing what sort of relationship she has with plaintiff. The ALJ reasonably discounted Ms. Sisson's observations for this reason. the ALJ was correct that Ms. Moreover, Sisson's statement that plaintiff cannot cook, shop, shave, or bathe himself is inconsistent with the record, with Tr. including plaintiff's own allegations. 181 Compare Tr. 305 (reporting that plaintiff has no problem feeding 21 - OPINION AND ORDER himself or shaving). The ALJ cited germane reasons to reject Ms. Sisson's testimony. C. Mr. Crow Dwight D. Crow also submitted a Witness Statement attesting that he has known plaintiff for 17 years and sees him twice per week. Mr. Crow marked that plaintiff is markedly limited in his overall functionality as well as in social functioning, and Tr. 306-07. Mr. Crow reported that he has difficulty with crowds of people. Id. moderately limited in activities of daily living. The ALJ rejected Mr. Crow's statement because it did not establish sufficient foundation for his testimony. Again, nothing in Mr. Crew's statement described the nature of his relationship or the extent of his contact with plaintiff. The ALJ could reasonably discredit Mr. Crow's statement on this basis. Thus, I conclude that the ALJ cited germane reasons to reject Mr. Crew's testimony. Moreover, I note that Mr. Crow's opinion is largely consistent with the RFC. Mr. Crow opined about plaintiff's interacting with people and in large crowds. limitations are accounted for in the RFC, Tr. as difficulty 306-08. These the ALJ limited plaintiff to occasional, brief contact with the general public and coworkers, environment. no teamwork, and Tr. 27, 306-08. working best in an autonomous Thus, even if the ALJ had failed to cite germane reasons for rejecting Mr. Crow' s testimony, such error would be harmless. 22 - OPINION AND ORDER Finally, because I conclude that the ALJ properly considered plaintiff's testimony, testimony, I reject the medical plaintiff's testimony, argument that and the the lay vocational hypothetical was inadequate on the basis that the ALJ erroneously weighed such evidence. CONCLUSION For the foregoing reasons, the decision of the ALJ AFFIRMED. IT IS SO ORDERED. DATED this ~ day of September, 2013. Malcolm F. Marsh United States District Judge 23 - OPINION AND ORDER is
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