# Evertz v. Commissioner Social Security Administration

> District Court, D. Oregon · May 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10392079

## Case

- **Court:** District Court, D. Oregon
- **Decided:** May 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

JANET E., Case No. 3:18-cv-01997-AA
OPINION AND ORDER
Plaintiff,
v.
ANDREW SAUL, Commissioner of
Social Security,
Defendant.

AIKEN, District Judge:
Janet E brings this action pursuant to the Social Security Act ("Act"), 42
U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of

Social Security ("Commissioner"), who denied plaintiffs application for Disability
Insurance Benefits ("DIB"). For the reasons set forth below, the Commissioner's
decision is AFFIRMED.
BACKGROUND
Plaintiff applied for DIB on May 14, 2015. She alleged disability beginning
March 31, 2007, which was later amended to February 27, 2012. Plaintiff's
application was initially denied on September 16, 2015 and denied again on

reconsideration February 22, 2016. She requested a hearing before an
Administrative Law Judge ("ALJ"). The ALJ held a hearing on June 15, 2017, where
plaintiff and a vocational expert (“VE”) offered testimony. The ALJ issued an
unfavorable decision on October 4, 2017. After the Appeals Council denied review,

plaintiff filed a complaint in this Court seeking review of the ALJ's decision.
STANDARD OF REVIEW
The Social Security Act provides for judicial review of the Social Security
Administration's disability determinations: "The court shall have power to enter . . .
a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. §
405(g). In reviewing the ALJ's findings, district courts act in an appellate capacity

not as the trier of fact. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). The district
court must affirm the ALJ's decision unless it contains legal error or lacks substantial
evidentiary support. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing
Stout v. Comm'r of Soc. Sec., 454 F.3d 1050, 1052 (9th Cir. 2006)). Harmless legal
errors are not grounds for reversal. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
2005). "Substantial evidence is 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." Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 522
(9th Cir. 2014) (citation and internal quotation marks omitted). The complete record
must be evaluated and the evidence that supports and detracts from the ALJ's
conclusion must be weighed. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001).
If the evidence is subject to more than one interpretation but the Commissioner's
decision is rational, the Commissioner must be affirmed, because "the court may not
substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001).

COMMISSIONER’S DECISION
The initial burden of proof rests upon the claimant to establish disability.
Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the
claimant must demonstrate an "inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected . . . to last for a continuous period of not less than 12 months[.]" 42 U.S.C.
§ 423(d)(l)(A).

The Commissioner has established a five-step sequential process for
determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140
(1987); 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ found that plaintiff had not
engaged in substantial gainful activity during the period from her amended alleged
onset date of February 27, 2012, through her date last insured of June 30, 2014. Tr.
69. At step two, the ALJ found that plaintiff had peripheral neuropathy, which

qualified as a severe impairment. Tr. 69, 20 CFR 416.1520(c). At step three, the ALJ
determined that plaintiff’s impairments, whether considered singly or in
combination, did not meet or equal “one of the listed impairments” that the
Commissioner acknowledges are so severe as to preclude substantial gainful activity
Tr. 71, 20 CFR 404.1520(d).
Before proceeding to step four, the ALJ assessed plaintiffs residual functioning
capacity ("RFC"). Tr. 71-77, 20 C.F.R. § 404.1520e). The ALJ found that plaintiff has
the RFC to perform light work as defined in 20 CFR 404.1567(b) except she could

occasionally climb and balance, and could frequently stoop, kneel, crouch, and crawl.
Id. At step four, the ALJ found that plaintiff was capable of performing past relevant
work as a legal secretary because the work did not require the performance of work-
related activities precluded by the claimant's RFC. Tr. 77, 20 CFR 404.1565. As the
ALJ found that plaintiff could perform past relevant work at step four, he found that
plaintiff was not disabled under the Act. Tr. 78.
DISCUSSION

Plaintiff argues the ALJ's decision involved the following errors: (1)
discounting Ms. Evertz subjective testimony, (2) rejecting medical opinion evidence,
(3) incorrectly assessing lay witness testimony, and (4) failing to incorporate all
medical findings into the plaintiff's RFC.
I. Medical Opinion Evidence
Plaintiff argues that the ALJ failed to provide clear and convincing reasons for

rejecting the medical opinions of Dr. Megan Madden, Dr. Micah Brasseur, and Dr.
Michael Shrifter.
Generally, "more weight is given to the opinion of a treating physician because
the person has a greater opportunity to know and observe the patient as an
individual." Bumala v. Berryhill, 2017 WL 1502798, at *4 (D. Or. Apr. 26, 2017)
(citing Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 2007)). "If a treating or
examining physician's opinion is not contradicted by another physician, the ALJ may
only reject it for clear and convincing reasons." Id.
However, "[e]ven if the opinion is contradicted by another physician, the ALJ

may not reject the opinion without providing specific and legitimate reasons
supported by substantial evidence in the record. Id. Specific, legitimate reasons may
include reliance on claimant's discredited subjective complaints, inconsistency with
medical records, inconsistency with a claimant's testimony, inconsistency with a
claimant's daily activities and, that the opinion is conclusory or brief or unsupported
by objective medical findings. Jacqueline, L. v. Berryhill, 2019 WL 1922525, at *7 (D.
Or. Apr. 30, 2019).

An ALJ may not reject a physician's opinion on the sole basis that it was issued
after the plaintiff's last insured date. Id. at *9. Because evidence generated after the
expiration of plaintiff's insured status may demonstrate the severity of the claimant's
impairments during the relevant period, the evidence may be relevant to determining
Plaintiff’s functioning capacity. Id. (citing Taylor v. Comm'r of Soc. Sec. Admin., 659
F.3d 1228, 1232 (9th Cir. 2011)); see also Church v. Colvin, 2013 WL 6839177, at *8

(D. Or. Dec. 27, 2013) (“The retroactive nature of Dr. Walker's opinion does not
necessarily render it incredible.”). However, if the lapse in time between a treating
physician's opinion and last date insured undermines the credibility of an opinion
that is conclusory and ambiguous in nature, an ALJ has a clear and convincing reason
for rejecting the opinion. Church v. Colvin, 2013 WL 6839177, at *8 (D. Or. Dec. 27,
2013).
A. Dr. Megan Madden
Dr. Madden's assessment of plaintiff noted presumed difficulty with low-stress
jobs, depression, and having more functional limitations than plaintiff's objective

signs suggest. Tr. 74-75, 1502-1507.
The ALJ does did not give Dr. Megan Madden's opinion great weight ruling
that her findings (1) were not consistent with the extent of the limitations she
assessed during the insured period and (2) were not supported with knowledge of
claimant's specific limitations because she never performed an occupational
evaluation.
Plaintiff argues that the ALJ failed to articulate clear and convincing reasons

for rejecting the opinion. Specifically, plaintiff contends Dr. Madden's observation
that plaintiff suffered from decreased ankle reflexes, absent vibration sensation, and
decreased temperature and pinprick sensation throughout the entire body are
objective signs reflected in her 2013 neurological exam. In addition, plaintiff notes
that Dr. Madden treated the patient for three years and though she was critical of
her own limitations, Dr. Madden never indicated that the opinion was not relevant

to plaintiff's functioning prior to June 2014. Thus, plaintiff asserts the ALJ's reasons
for rejecting Dr. Madden's observations in her RFC were not supported by the record.
An ALJ can discredit opinions based on contradictions between the opinion and
the physicians own notes that indicate much less severe symptoms. See Buck v.
Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017). Here, Dr. Megan Madden's objective
findings during plaintiff's insured period are generally limited to her neurological
exam and accompanying noted observations of elevated inflammatory markers, pain
in plaintiff's feet, and aggravated neuropathy. These observations do not comport
with the extent of plaintiff's symptoms that Dr. Madden assessed in her opinion,

which states that plaintiff would have significant limitations and is incapable of low-
stress jobs and standing or walking for longer than two-hour periods. Further, Dr.
Madden did not evaluate plaintiff's functional limitations either before or after the
insured period and repeatedly noted on the 2017 assessment that she did not perform
an occupational evaluation. Accordingly, the ALJ had clear and convincing reasons
for determining that Dr. Madden's opinion was not supported by objective findings
during the insured period or Dr. Madden's own notes.

Thus, absent objective findings from the insured period that assess or support
Dr. Madden's conclusions regarding plaintiff's functional limitations, the opinion is
conclusory and unsupported by objective medical findings. Elliott v. Astrue, 2010 WL
3732297, at *6 (D. Or. Sept. 20, 2010) (citing Batson v. Comm'r of Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Accordingly, because the opinion is
conclusory and ambiguous in nature and rendered after the last date insured, the

ALJ had significant and legitimate reasons for rejecting Dr. Madden's medical
opinion. Accordingly, the Court cannot find that the ALJ erred in giving Dr.
Madden’s opinion little weight.
B. Dr. Michah Brasseur
Dr. Micah Brasseur's opinion noted plaintiff's nerve conduction studies
indicated that she would have substantial difficulty with stamina, pain or fatigue if
she worked full time. Further, he noted she would need to work at a reduced pace
and that her symptoms would frequently interfere with her ability concentrate and
would be made worse if she worked full time.

The ALJ determined Dr. Brasseur's opinion was given little weight in
assessing claimant's functioning during the relevant period because (1) Dr. Brasseur
did not treat claimant until long after the last insured date; (2) Dr. Brasseur's
findings were inconsistent with records produced during the time plaintiff was
insured, which indicated an improving and stabled condition with medication and
decreased sensation, intact strength, and normal gait; and (3) there was no indication
that he reviewed claimant's earlier records.

Plaintiff argues that, despite Dr. Brasseur not examining plaintiff until after
the period at issue, his opinion is nevertheless relevant because he noted there were
no significant changes in Ms. Evertz's condition. Thus, because her objective issues
are “more or less the same over time” and her comparative nerve conduction studies
indicate that objective symptoms remained the same, his observations related back
to the time at issue. Moreover, plaintiff contends that Dr. Brassuer's opinion is

bolstered by the fact that Dr. Madden agreed with his findings.
Similar to Dr. Madden's opinion, the ALJ reasonably determined that the
extent of limitations that Dr. Brasseur stated in his opinion were inconsistent with
the objective medical findings during the relevant period. Specifically, Dr. Brasseur
opines that plaintiff would experience substantial difficulty and limitations if she
were employed full time and would need to change positions every two hours, despite
any objective findings during the relevant period that support such limitations.
Accordingly, his assessment does not adequately reflect the demonstrated severity of
the claimant's impairments during the relevant period of time. Moreover, besides

acknowledging that the findings of his own EMG/nerve conduction study were
consistent with the results obtained by Dr. Madden in 2013, Dr. Brasseur does not
reference any objective medical findings during the relevant period in his assessment
or treatment notes. Therefore, the ALJ correctly determined that Dr. Brasseur's
opinion was of minimal probative value in assessing plaintiff's functioning during the
relevant period.
C. Dr. Michael Shrifter

Dr. Shrifter's opinion contained a completed Impairment Questionnaire. The
questionnaire indicated moderate limitations in the claimant's ability to understand,
remember, apply information, and concentrate. Additionally, it noted extreme
limitations in claimant's ability to maintain regular attendance, complete an eight-
hour day without needing an additional rest period and perform work without getting
distracted. He also opined that plaintiff's depression and anxiety exacerbated and

intensified her experience of pain.
The ALJ gives the opinion very little weight because (1) Dr. Shrifter did not
treat claimant until two years after the date last insured and (2) his assessment of
plaintiff's limitations was not supported by any explanation and not consistent with
the mental status examination findings in the record.
Plaintiff argues that the ALJ failed to provide clear and convincing reasons for
providing little weight to Dr. Shrifter's opinion. She contends that the ALJ erred in
relying on findings of state agency consultants who did not agree with the treating

physicians' findings. Instead, plaintiff argues the ALJ should have requested a
consultative exam because he had a duty to develop the record regarding the exact
measure of Ms. Evert's mental health limitations if he had doubts regarding the
nature of her psychological issues. In support, plaintiff cites multiple instances
throughout the record that support the presence of her psychological issues and
asserts Dr. Shrifter's opinion refers to issues that relate back to the relevant time at
issue.

“In Social Security cases, the ALJ has a special duty to fully and fairly develop
the record and to assure that the claimant's interests are considered." Williams v.
Comm'r of Soc. Sec. Admin., 494 F. App'x 766, 768 (9th Cir. 2012) (quoting Brown v.
Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). However, the duty is not necessarily
triggered with a specific finding of ambiguity or inadequacy of the record. Thiems v.
Colvin, 2013 WL 3874066, at *3 (D. Or. July 25, 2013). Where an ALJ has made

specific findings that are supported by substantial evidence in the record to justify a
decision to disbelieve an allegation, “our role is not to second-guess that decision.”
Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (quoting
Fair, 885 F.2d at 603.).
The ALJ did not have a duty to further develop the record. See Thiems v.
Colvin, 2013 WL 3874066, at *6 (D. Or. July 25, 2013) (quoting Mayes v. Massanari,
276 F.3d 453, 459–60 (9th Cir.2001)) (“[T]he ‘duty to 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[,]’”). The record contained adequate findings and

sufficient evidence within the relevant period to determine that plaintiff's mental
health limitations were "unremarkable” Tr. 76; compare Widmark v. Barnhart, 454
F.3d 1063, 1069 (9th Cir. 2006) (“[T]he only effort the ALJ made to develop a full and
fair record . . . was during the first hearing . . . when he asked Widmark, ‘Is there
anything else you want to tell me about your health or your working capabilities that
you think might be important for me to know?’”). The ALJ opinion takes considerable
lengths to discuss plaintiff's history of depression and anxiety and cites specific

instances where it was discussed in the record. Ultimately, however, the ALJ
determined that the effectiveness of medications and the plaintiff's documented
improvement through the last date insured indicated that plaintiff's depression and
anxiety did not impose more than mild functional limitations. Further, this finding
was supported by the opinions of the state agency medical consultants, who’s opinion
evidence was giving great weight.

The ALJ provided clear and convincing reasons for rejecting Dr. Shrifter's
opinion. The record did not support a severe impairment during the relevant period,
and therefore, plaintiff was not disabled within the meaning of the Social Security
Act. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (“ALJ found that Sam had
no severe impairments on or before his date last insured and thus was not disabled
within the meaning of the Social Security Act”). Accordingly, the fact that Dr.
Shrifter did not begin treating plaintiff until two years after her last insured date
renders his assessment of plaintiff's functioning of minimal probative value. See
Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) ("After-

the-fact psychiatric diagnoses are notoriously unreliable."); Robinson v. Apfel, 229
F.3d 1158 (9th Cir. 2000) ("[T]he attempt to diagnose a psychiatric condition five
years after the fact lacks sufficient probative value to have any evidentiary weight.").
II. Plaintiff Subjective Symptom Testimony
Plaintiff's subjective testimony alleged numerous symptoms: numbness and
tingling in her upper and lower extremities, a feeling of frostbite in her upper
extremities, shooting pain in her feet, difficulty using her hands, frequently dropping

things, an uncomfortable, burning, numb, and achy sensation. She also testified she
could only walk about a quarter of a mile, had issues lifting things, difficulty sitting,
and experienced problems getting in and out of the shower and that the water hurt
her body.
The ALJ discounted plaintiff's testimony because the statements concerning
the intensity, persistence, and limiting effects of the symptoms were not consistent

with the evidence in the record. Though the ALJ acknowledges the objective findings
that support some functional limitations during the relevant period at issue, the ALJ
maintained that the findings were not consistent with the extent of the symptoms
and limitations alleged by claimant.
Plaintiff argues that the ALJ failed to provide clear and convincing reasons for
rejecting plaintiff's testimony. First, plaintiff asserts that the ALJ cherry-picked
evidence that demonstrated a narrative that plaintiff was doing well and ignored
evidence from the record that did not “paint a rosy picture of Ms. Evertz's
neuropathy.” Pl.’s Br. 15. As a result, plaintiff contends that the ALJ cited sections

of the record that fail to demonstrate the broader development during the time at
issue and instead, only cited evidence that indicated she could engage in sustaining
regular work activity.
An ALJ must perform a two-stage analysis when deciding whether to accept
plaintiff's subjective symptom testimony. Bumala v. Berryhill, 2017 WL 1502798, at
*6 (D. Or. Apr. 26, 2017). First, “the claimant must produce objective medical
evidence of an impairment which could reasonably be expected to produce some

degree of symptoms.” Id. Second, the ALJ assesses the credibility of plaintiff's
testimony regarding the symptom’s severity by identifying specific evidence that
undermines the testimony. Id. Specific evidence that undermines the alleged
severity of plaintiff's testimony may include the effectiveness of medication in
treating plaintiff’s symptom severity. Id.
To support and adverse credibility determination at this stage, the ALJ must

rely on substantial evidence rather than general findings. Id. “An ALJ can satisfy
the ‘substantial evidence’ requirement by ‘setting out a detailed and thorough
summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Cindy F. v. Berryhill, 367 F. Supp. 3d 1195, 1214 (D.
Or. 2019) (quoting Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014)).
Here, the ALJ rejects lay testimony because “the objective findings that
support some functional limitations . . . is not consistent with the extent of the
symptoms and limitations alleged by claimant.” Tr. 72. Throughout the relevant

period, the record repeatedly documents that plaintiff experienced pain, but it also
indicates that her pain was well-managed, and her examinations lacked support for
the alleged debilitating limitations. The ALJ spent considerable time weighing the
sparse objective examination findings and reported pain against medication
effectiveness, plaintiff's activity, and reported improvement. Wellington v. Berryhill,
878 F.3d 867, 876 (9th Cir. 2017) ("Such evidence of medical treatment successfully
relieving symptoms can undermine a claim of disability."); Green v. Berryhill, 2017

WL 2369378, at *4 (D. Or. May 30, 2017) ("ALJ reasonably found that the objective
medical records show that plaintiff is able to manage pain with a combination of
prescribed medications or conservative medical treatment.").
Accordingly, the ALJ identified specific evidence when assessing the credibility
of plaintiff's testimony regarding the intensity, persistence, and limiting effects of her
disability and had a sufficiently specific basis for rejecting plaintiff's testimony.

Thus, the Court rejects the argument that the ALJ was “cherry-picking” the record
to find specific evidence to support his conclusion. DeLong v. Comm'r of Soc. Sec.
Admin., 748 F.3d 723, 726 (6th Cir. 2014) (“[T]his allegation is seldom successful
because crediting it would require a court to re-weigh record evidence.”).
Plaintiff takes issue with the ALJ citing plaintiff’s ability to go hiking on one
occasion. However, the ALJ's assessment of plaintiff's condition does not indicate
that plaintiff's outing was determinative in weighing the credibility of plaintiff's
opinion. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (“[T]he ALJ must
give ‘specific, clear and convincing reasons' in order to reject the claimant's testimony

about the severity of the symptoms.”). Rather, the ALJ identified plaintiff's canoeing
and hiking trip among a multitude of other events in the record that cast doubt on
the extent of plaintiff’s alleged symptoms.
III. Lay Witness Testimony
Plaintiff argues that the ALJ erred in not crediting the lay witness testimony
of her husband, daughter, and sister. An ALJ must accept plaintiff's testimony about
her symptoms as competent evidence unless the ALJ gives reasons for the rejection

that are germane to each witness. Bumala v. Berryhill, 2017 WL 1502798, at *7 (D.
Or. Apr. 26, 2017) (citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th
Cir. 2006). Discounting lay witness testimony on the basis of its conflicting with
medical evidence is legitimate; however, a lack of support from the “overall medical
evidence” is also not a proper basis for disregarding a lay witness' observations.
Diedrich v. Berryhill, 874 F.3d 634, 640–41 (9th Cir. 2017). "Once a claimant submits

objective medical evidence establishing an impairment that could reasonably be
expected to cause some pain, 'it is improper as a matter of law for an ALJ to discredit
excess pain testimony solely on the ground that it is not fully corroborated by
objective medical findings.'" Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989) (quoting
Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (per curiam).
Further, although observations were completed after the last date insured, the
observations may nevertheless be relevant to show a plaintiff's symptoms during that
period. Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017). Unless there is a

reason to believe that the plaintiff experienced a major symptom change between the
observations and period insured, it is a fair and reasonable inference that the
observed symptoms were substantially similar to the symptoms claimant experienced
during the relevant period. Id. Indeed, lay testimony typically functions to offer a
different perspective than what medical records alone can provide. Id.
An ALJ may disregard lay witness statements if they are inconsistent with the
claimant's activities of daily living or the other evidence of record." Pofahl v. Colvin,

2015 WL 1401622, at *4 (D. Or. Mar. 24, 2015) (citing Bayliss v. Barnhart, 427 F.3d
1211, 1218 (9th Cir. 2005)). However, before determining that plaintiff's activities
suggest that a plaintiff is not actually disabled, the ALJ must explain how the skills
are transferrable to the world environment. Dubrawsky v. Berryhill, 2017 WL
1758054, at *7 (D. Or. May 2, 2017).
A. Theodore E’s Lay Testimony

Plaintiff's husband, Theodore E., testified on his observations of plaintiff's
symptoms in July 2015 and June 2017. In the July 2015 function report, he stated
that plaintiff suffered chronic fatigue, depression, chronic pain in her hands and feet,
difficulty concentrating and completing tasks, irritability, and difficulty walking. He
also noted that plaintiff had a reduced desire to groom, did not do household chores,
and was limited to lifting five pounds, standing for three to five minutes, walking
twenty-five yards, and could not squat or kneel. Tr. 76. In June 2017, Mr. E.
submitted testimony that specifically addressed his observations of plaintiff's
symptoms during the relevant period by referencing the year plaintiff's symptoms

were exacerbated. He stated that plaintiff began experiencing increasing orientation
in 2010, slurred speech in 2008, and since then, her pain, fatigue, and irritability
have worsened.
The ALJ gave Mr. E.’s testimony little weight because (1) it was completed
after the date last insured, (2) was not consistent with the medical records pertaining
to the relevant period, (3) and conflicted with plaintiff's hiking and canoeing outing
in 2012.

The fact Mr. E. completed his statements after the last date insured is an
illegitimate reason for rejecting his testimony. Many of Mr. E’s observations
specifically related back to the insured period and are therefore relevant to the
assessment of plaintiff's symptoms. Diedrich v. Berryhill, 874 F.3d 634, 640–41 (9th
Cir. 2017) ("[A]lthough Niebaum's observations began three months
after Diedrich's insured period ended, his observations are still relevant to

show Diedrich's symptoms during that period.").
Plaintiff argues that Mr. E.’s testimony is supported by the record and relates
back to the period at issue. Specifically, plaintiff cites several notes in the record that
support the symptoms that Mr. E. included in his testimony and provides that those
symptoms prompted treating providers to perform an MRI to look for a brain tumor.
Further, plaintiff cites that eight small nonspecific focal hyperintensities were found
consistent with post inflammatory or post ischemic gliotic changes.
Mr. E.’s testimony is not inconsistent with substantial evidence on the record.

Though his observations were not entirely supported by the medical record, no
affirmative contradictory evidence conflicted with his testimony. Cindy F. v.
Berryhill, 367 F. Supp. 3d 1195, 1218 (D. Or. 2019) (quoting Rivera v. Colvin, 2013
WL 6002445, at *4 (D. Or. Nov. 12, 2013)) ("[T]he ALJ can 'reject [lay witness] reports
. . . based only on affirmative contradictory evidence in the medical record, not
absence of supporting evidence.'"). Mr. E. attributed many of plaintiff's functional
limitations to the extent of pain she experienced, which is repeatedly cited in the

medical record. He also discusses symptoms arising from plaintiff's depression,
irritability, and difficulty concentrating and completing tasks, which is also
repeatedly cited throughout the record. Thus, despite the lack of objective medical
evidence supporting the extent of plaintiff's functional limitations, his testimony does
not conflict with the record. Accordingly, the ALJ's stated reason for rejecting Mr.
Evertz's opinion was erroneous and lacked a legally sufficient basis for discounting

lay witness testimony. Cindy F. v. Berryhill, 367 F. Supp. 3d 1195, 1219 (D. Or.
2019) ("Lack of support or corroboration by the medical record is not a legally
sufficient basis for discounting lay witness testimony, and the ALJ did not identify
any inconsistencies in the medical record as a basis for rejecting the lay witness
testimony."); see, e.g., Lacie R. v. Berryhill, 2019 WL 1919168, at *11 (D. Or. Apr. 30,
2019) ("[T]he ALJ relied on a lack of medical diagnosis for Plaintiff's neuropathy as a
reason to dismiss Lorianna R.'s lay witness testimony. The Court finds that this
reason does not qualify as germane.").
Additionally, the ALJ erred in failing to explain how plaintiff's canoeing and

hiking outing was inconsistent with the pain Mr. E. described in his testimony. On
this outing, it appears plaintiff and her husband drove to the side of a road to hike
down the embankment to the river. Though Mr. E. is able to "hoist" the canoe himself,
it seems plaintiff assisted him with putting the canoe in the water. However, the
ALJ's opinion failed explain how this one-time, physically undemanding outing
constituted an activity that was transferrable to a work setting. Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989) ("Yet if a claimant is able to spend a substantial part of

his day engaged in pursuits involving the performance of physical functions that are
transferable to a work setting, a specific finding as to this fact may be sufficient to
discredit an allegation of disabling excess pain."); Denell S. v. Comm'r, Soc. Sec.
Admin., 2019 WL 6716984, at *8 (D. Or. Dec. 6, 2019) ("ALJ did not explain his
finding that plaintiff's ability to help with housework “when able,” check the mail,
and grocery shop a few times a month showed that she has few limitations."). Thus,

the Court finds no inconsistency supported by substantial evidence that the canoeing
and hiking outing was inconsistent with the pain Mr. Evertz described in his
testimony.
"This error is harmless, however, because the ALJ properly discounted
[p]laintiff's testimony regarding her limitations caused by her physical impairments."
Lacie R. v. Berryhill, 2019 WL 1919168, at *12 (D. Or. Apr. 30, 2019); Lord v.
Berryhill, 2018 WL 1811472, at *6–7 (D. Or. Apr. 16, 2018) (quoting Buckner v.
Astrue, 646 F.3d 549, 560 (8th Cir. 2011) (“[A]n ALJ's failure to comment upon lay
witness testimony is harmless where ‘the same evidence that the ALJ referred to in

discrediting [the claimant's] claims also discredits [the lay witness's] claims.’”).
Both plaintiff and her husband‘s testimony are similar regarding the alleged
symptoms and degree of pain. Given that the ALJ has validly rejected plaintiff's
testimony regarding the intensity, persistence, and limiting effects of her symptoms,
her husband’s testimony would not alter the ALJ's disability decision and is therefore
harmless. See Molina v. Astrue, 674 F.3d 1104, 1116 (9th Cir. 2012).
B. Beatrice P. & Barbara M. Lay Witness Testimony

Plaintiff's daughter, Beatrice P., testified that plaintiff was unable to walk too
far or too long, needed a cane to help her walk to avoid falling when her feet went
numb. Plaintiff's sister, Barbara M., testified that claimant was unable to enjoy
spending time with her grandchildren due to her limited mobility and severe pain
and had been showing alarming signs of decline in 2002 or 2003.
The ALJ gives these statements little weight because (1) there were rendered

after the date last insured, (2) are of minimal probative value in assessing the
claimant's functioning during the relevant time at issue, and (3) is not consistent with
the medical records, which reflected improvement and stability in the claimant's
condition. Specifically, the ALJ takes issue with Ms. M’s statement because plaintiff
continued to work after 2002, which runs counter to her assertion that she began
showing “alarming signs of decline” during that period. Tr. 77.
Plaintiff argues that the fact the testimony was written after the date last
insured was immaterial because her family knew her during the relevant date at
issue, and therefore their account is probative. Further, plaintiff asserts that that

the statements provide credible day-to-day observations and the record supports
those statements. Accordingly, plaintiff contends that ignoring the accounts is
harmful legal error because a reasonable ALJ could have found plaintiff disabled if
lay witness accounts were fully credited.
The ALJ did not need to reject any of the evidence in Ms. P. and Ms. M.’s
testimony to reach his conclusions and therefore did not err. Lord v. Berryhill, 2018
WL 1811472, at *6–7 (D. Or. Apr. 16, 2018). In determining that the testimony was

of minimal probative value in assessing the claimant's functioning during the
relevant period, the ALJ observed that Ms. P.’s statements regarding plaintiff's
inability “to walk too far or too long, and needed a cane to help her walk as not to fall
when her feet were numb.” Tr. 77. Similarly, the ALJ cites Ms. M’s statements
regarding plaintiff's alarming signs of decline in 2002 or 2003 and progressive
numbness and pain. Though both testimonies reiterate that plaintiff suffers from

extensive pain, they do not provide any specifics regarding plaintiff's functional
limitations or how her impairment affects her ability to work, such as how far she
could walk, the extent she could move, or how long she could concentrate.
Accordingly, the ALJ did not err in determining that the testimony was of minimal
probative value in assessing the claimant's functioning during the relevant period.
Moreover, the witnesses’ testimony both describe plaintiff's condition
progressively worsening over a large span of time without specifics regarding what
functional limitations impeded plaintiff's ability to work during the relevant period.

For example, Ms. P. discusses how plaintiff's symptoms progressively worsened from
2005 to 2017, the date of the testimony, and Ms. M. discusses the progression from
2002 to 2017, the date of the testimony. Thus, both testimonies give reason to believe
that the plaintiff experienced a major symptoms change, but it is unclear whether
the extent of these limitations functionally limited plaintiff during the relevant period
because there were no specifics on what functional limitations plaintiff suffered and
whether they occurred during the relevant period. Fair v. Bowen, 885 F.2d 597, 601–

02 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (per
curiam). Accordingly, it is unclear whether the observations specifically related back
to the insured period and were therefore provided minimal probative value by the
ALJ. Thus, the ALJ gave germane reasons for not fully crediting this testimony.
IV. Residual Functioning Capacity Finding
The ALJ did not err in assessing plaintiff's residual functional capacity

(“RFC”). Plaintiff contends that the assessed RFC is incomplete because it does not
specifically recognize plaintiff's ability to perform sustained work, ignored the
reduced concentration and all-over body pain that occurs with fibromyalgia that was
diagnosed in the record, and failed to consider all of the evidence. This argument
fails, however, because the ALJ did not err in his treatment of the disputed medical
experts or other sources when reaching his determination that plaintiff was able to
perform her past relevant work. See Delegans v. Berryhill, 766 F. App'x 477, 480 (9th
Cir. 2019).
Moreover, the ALJ discusses that “the record is devoid of the required clinical

findings to establish the fibromyalgia diagnosis as a medically determinable severe
impairment because it was not accompanied by the required clinical findings.” Tr.
69-70. Despite this lack of required clinical findings, the ALJ discusses the pain
plaintiff experienced throughout the relevant period as well as the effectiveness of
medications in reaching his ultimate determination that claimant had the RFC to
perform light work as defined in 20 CFR 404.1567(b). Thus, the substantial evidence
from the record supports the ALJ's residual functional capacity funding.

CONCLUSION
The Commissioner's decision is AFFIRMED, and this case is dismissed.
IT IS SO ORDERED.
Dated this _3_0_t_h_ day of May 2020.

__________/s_/_A_n_n_ _A_i_k_e_n________
Ann Aiken
U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392079. Public record. Not legal advice.