Fox v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KATHLEEN F.,1 No. 6:20-cv-00930-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

Katherine L. Eitenmiller

HARDER, WELLS, BARON & MANNING, P.C.

474 Willamette Street

Eugene, OR 97401

Attorney for Plaintiff

Renata Gowie

Assistant United States Attorney

District of Oregon

1000 SW Third Avenue, Suite 600

Portland, OR 97204

1 In the interest of privacy, this Opinion uses only the first name and the initial of the last name

of the non-governmental party or parties in this case. Where applicable, this Opinion uses the

same designation for a non-governmental party’s immediate family member.

Christopher J. Brackett

Social Security Administration

Office of the General Counsel

701 Fifth Avenue, Suite 2900 M/S 221A

Seattle, WA 98104

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Kathleen F. brings this action seeking judicial review of the Commissioner’s

final decision to deny disability insurance benefits (“DIB”). This Court has jurisdiction pursuant

to 42 U.S.C. § 405(g). The Court affirms the Commissioner’s decision.

PROCEDURAL BACKGROUND

Plaintiff applied for DIB on April 2, 2016, alleging an onset date of February 14, 2015.

Tr. 10.2 Plaintiff’s date last insured (“DLI”) is June 30, 2020. Tr. 12. Her application was denied

initially and on reconsideration. Tr 10.

On May 6, 2019, Plaintiff appeared with counsel for a hearing before an Administrative

Law Judge (“ALJ”). Tr. 23. On May 30, 2019, the ALJ found Plaintiff not disabled. Tr. 17. The

Appeals Council denied review. Tr. 1.

FACTUAL BACKGROUND

Plaintiff alleges disability based on “deep vein thrombosis, venous stasis ulcers (both

feet/ankles), knee joint pain (both knees), [and] hypertension.” Tr. 185. At the time of her alleged

onset date, she was 58 years old. Tr. 70. She has high school education and past relevant work

experience a hardware salesperson. Tr. 16, 186.

2 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative

record, filed herein as Docket No. 10.

SEQUENTIAL DISABILITY EVALUATION

A claimant is disabled if they are unable to “engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which . . . has lasted or can

be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.

§§ 423(d)(1)(A), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step

procedure. See Valentine v. Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases,

agency uses five-step procedure to determine disability). The claimant bears the ultimate burden

of proving disability. Id.

In the first step, the Commissioner determines whether a claimant is engaged in

“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,

140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines

whether the claimant has a “medically severe impairment or combination of impairments.”

Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not

disabled. Id.

In step three, the Commissioner determines whether the claimant’s impairments, singly

or in combination, meet or equal “one of a number of listed impairments that the [Commissioner]

acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;

20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if

not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any

impairment(s), has the residual functional capacity (RFC) to perform their “past relevant work.”

20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the

claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to

the Commissioner. In step five, the Commissioner must establish that the claimant can perform

other work. Yuckert, 482 U.S. at 141–42; 20 C.F.R. §§ 404.1520(e)–(f), 416.920(e)–(f). If the

Commissioner meets their burden and proves that the claimant can perform other work that

exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566,

416.966.

THE ALJ’S DECISION

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful

activity after her alleged onset date. Tr. 12. Next, at steps two and three, the ALJ determined that

Plaintiff has the following severe impairments: “deep vein thrombosis/venous insufficiency;

osteoarthritis and degenerative joint disease – knees – bilateral; bilateral ankles – dependent

rubor with scarring.” Tr. 12. However, the ALJ determined that Plaintiff’s impairments did not

meet or medically equal the severity of a listed impairment. Tr. 13. At step four, the ALJ

concluded that Plaintiff has the residual functional capacity to perform light work as defined in

20 C.F.R. §§ 404.1567(b) with the following limitations: “The claimant can occasionally climb

ramps, stairs, ladders, ropes, and scaffolds. The claimant can occasionally stoop, kneel, crouch,

and crawl.” Tr. 13. Because of these limitations, the ALJ concluded that Plaintiff could perform

her past relevant work as a hardware salesperson. Tr. 16. Thus, the ALJ concluded that Plaintiff

is not disabled. Tr. 17.

STANDARD OF REVIEW

A court may set aside the Commissioner’s denial of benefits only when the

Commissioner’s findings “are based on legal error or are not supported by substantial evidence

in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal

quotation marks omitted). “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.” Id. (internal quotation marks omitted). The court considers the record as a

whole, including both the evidence that supports and detracts from the Commissioner’s decision.

Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is

susceptible to more than one rational interpretation, the ALJ’s decision must be affirmed.”

Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v.

Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either

a grant or a denial, [the court] may not substitute [its] judgment for the ALJ’s”) (internal

quotation marks omitted).

DISCUSSION

Plaintiff argues the ALJ erred by: (1) improperly rejecting Plaintiff’s subjective symptom

testimony; (2) improperly rejecting the medical opinion of David DeHaas, MD; (3) improperly

rejecting the other medical source statement of Lauren Bell, PA; and (4) improperly rejecting the

lay witness testimony of Plaintiff’s spouse, daughter, and former coworker. The Court disagrees.

I. Subjective Symptom Testimony

Plaintiff first argues that the ALJ erred in rejecting Plaintiff’s subjective symptom

testimony. The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL

5180304, at *1 (Oct. 25, 2017). Once a claimant shows an underlying impairment and a causal

relationship between the impairment and some level of symptoms, clear and convincing reasons

are needed to reject a claimant’s testimony if there is no evidence of malingering. Carmickle v.

Comm’r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is

malingering, “where the record includes objective medical evidence establishing that the

claimant suffers from an impairment that could reasonably produce the symptoms of which he

complains, an adverse credibility finding must be based on clear and convincing reasons”)

(quotation marks and citation omitted); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.

2012) (the ALJ engages in a two-step analysis for subjective symptom evaluation: First, the ALJ

determines whether there is “objective medical evidence of an underlying impairment which

could reasonably be expected to produce the pain or other symptoms alleged”; and second, “if

the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ

must give specific, clear and convincing reasons in order to reject the claimant’s testimony about

the severity of the symptoms.”) (quotation marks and citations omitted).

When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)). “An ALJ does not provide specific, clear, and convincing reasons for rejecting a

claimant’s testimony by simply reciting the medical evidence in support of his or her residual

functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).

Instead, “the ALJ must specifically identify the testimony she or he finds not to be credible and

must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195

(9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons

proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ

did not arbitrarily discount the claimant’s testimony.”).

Plaintiff worked for 36 years at a hardware store. Tr. 30–32. She did various tasks in this

position, including directing customers to items, working as a cashier, assisting with orders,

stocking shelves, and opening the store. Tr. 30–31. Her long-term employer would let her put her

feet up and sit on a stool even with customers in the store. Tr. 32. But when the store was sold in

2014, she was unable to continue working because the new owners would not accommodate her.

Tr. 32. The new owners also increased her working hours from three days a week. Tr. 39–40.

She tried to work at another hardware store, but she could not sit down and was unable to

continue working after a few days. Tr. 33, 40. At the time of the hearing, she would occasionally

work part-time as a ballot sorter because she could sit and stand as needed. Tr. 34.

Her blood clotting disorder and knee condition limit her day-to-day activities. Plaintiff

has had DVT since 1981 and knee issues since 2005, which have gotten worse as she has gotten

older. Tr. 38. Blood pools in her ankles when she sits or stands for long periods of time and

causes painful ulcers. Tr. 35. She can only stand for five minutes without pain and sit for five or

ten minutes without pain. Tr. 35–36. She can walk short distances, but walking miles is painful.

Tr. 35. Her gait is “knock-kneed” because of her knee condition. Tr. 37. To manage her

condition, she has to elevate her legs in a recliner at least five times a day. Tr. 36. On days where

she can sit with her legs up most of the day, she feels really good. Tr. 36. The most she can carry

is a seven-pound jug from the store to the car. Tr. 36–37. She does not bother lifting more than

that because it puts pressure put on her legs, making her uncomfortable. Tr. 37. Plaintiff also

struggles with squatting, bending, reaching, kneeling, climbing stairs, and completing tasks. Tr.

216.

Plaintiff testified that she watches her granddaughter one day a week, and her husband is

usually around while Plaintiff babysits. Tr. 37–38. She has canceled in the past because of her

health issues. Tr. 38. Plaintiff drives about twenty minutes to a Kiwanis meeting every week. Tr.

29–30, 40. She is in pain when she gets out of the car. Tr. 40. For exercise, she walks to and

from her mailbox about a block away, which causes pain. Tr. 41. Plaintiff cooks dinner every

day, which takes anywhere from thirty minutes to one and a half hours. Tr. 213. Plaintiff cleans,

does laundry, and mows the lawn when needed. Tr. 214. She goes outside as often as possible

and grocery shops. Tr. 214. Plaintiff spends her free time growing house plants, gardening, and

doing word puzzles. Tr. 215. She cannot do these activities as long as she used to. Tr. 215.

The ALJ gave three reasons for discounting Plaintiff’s subjective symptom testimony: (1)

Plaintiff’s activities of daily living; (2) Plaintiff’s conservative treatment; and (3) lack of support

from the objective medical evidence. Tr. 14–15. Though the ALJ erred in discounting Plaintiff’s

testimony due to lack of support from the objective medical evidence, the other reasons

identified by the ALJ are clear, convincing, and supported by substantial evidence. Thus, the

ALJ did not err in discounting Plaintiff’s subjective symptom testimony.

A. Activities of Daily Living

Contradiction with a claimant’s activities of daily living is a clear and convincing reason

for rejecting a claimant’s testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).

There are two grounds for using daily activities to form the basis of an adverse credibility

determination: (1) when activities meet the threshold for transferable work skills and (2) when

activities contradict a claimant’s other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.

2007). However, “disability claimants should not be penalized for attempting to lead normal

lives in the face of their limitations,” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), and

“the mere fact that a plaintiff has carried on with certain daily activities, such as grocery

shopping . . . does not in any way detract from his credibility,” Webb v. Barnhart, 433 F.3d 683,

688 (9th Cir. 2005) (citing Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). In order to

impact a claimant’s credibility, the activity has to be “inconsistent with claimant’s claimed

limitations.” Reddick, 157 F.3d at 722. The ALJ cannot mischaracterize statements and

documents in the record or take these out of context to reach his conclusion on the claimant’s

credibility. Id. at 722–23.

The ALJ found that the alleged severity of symptoms was inconsistent with Plaintiff’s

reported activities of daily living. Specifically, the ALJ identified Plaintiff’s statements that she

takes care of her two-and-a-half-year-old granddaughter and engages in various chores around

the house. Tr. 15. The ALJ also noted Plaintiff’s reports to providers that she exercises regularly

and that she can walk “without difficulty and without any significant instability.” Tr. 14–15.

The ALJ’s findings are supported by substantial evidence. Plaintiff’s reported limitations

conflict with the activities she reported in her function report and to her medical providers. For

example, Plaintiff stated that she would do the dishes, do laundry, clean her house, mow the

lawn, and water her plants indoors and outdoors. Tr. 212, 214–215. She cooks dinner—a “meat,

potatoes-veg kind of meal”—daily, which takes thirty minutes to an hour and a half. Tr. 213. She

bakes some days. Tr. 212. She also watches her young grandchild once a week, which entails

feeding her, playing with or entertaining her grandchild, and changing her diaper Tr. 37–38, 212,

438 (reporting to a provider that she has trouble getting on the ground with her grandchild and

has to wear knee pads). Though she testified her husband is home with her when she watches her

grandchild, there is no suggestion in the record that he helps her with this task. Indeed, she wrote

in her function report that she also cares for her husband by cooking, cleaning, running errands,

and doing his laundry. Tr. 212. These activities reasonably conflict with Plaintiff’s testimony that

she can only stand or walk for five minutes, sit for five minutes, and otherwise spend most of the

day with her feet elevated. Tr. 35–36. Accordingly, the ALJ’s reasoning was clear and

convincing.

B. Conservative Treatment

An unexplained or inadequately explained, failure to seek treatment or follow a

prescribed course of treatment can be a basis to discount a claimant’s symptom testimony. Fair

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Conservative treatment and failure to seek out

treatment can be “powerful evidence regarding the extent to which [a claimant] is in pain.”

Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). However, no adverse finding is warranted

where a claimant has a good reason for failing to obtain treatment. See Orn, 495 F.3d at 638; see

also SSR 16-3p, 2016 WL 1119029, at *8-9 (Commissioner will not find an individual’s

symptoms inconsistent with a lack of treatment without considering possible reasons, including

inability to pay for treatment).

The ALJ found that Plaintiff’s testimony is inconsistent with Plaintiff’s course of

conservative treatment. Tr. 15. The ALJ found that the treatment recommended by providers for

her knees—including shoe inserts, losing weight, range of motion exercises, and strengthening

exercises—was “conservative.” Tr. 15. The ALJ also noted that Plaintiff has not shown interest

in surgery. Tr. 15. Taken together, the ALJ concluded that these recommendations did not

support Plaintiff’s alleged need to elevate her legs frequently or avoid light work. Tr. 15.

The ALJ’s reasoning in supported by substantial evidence. Plaintiff was recommended

surgery by two specialists along with other treatment modalities, such as compression socks, for

her venous stasis. Tr. 283 (DeHaas recommendation of endovascular ablation of veins), 354

(Viramontes recommending surgery). But Plaintiff has not pursued surgical treatment. And in

one of her more recent appointments, Plaintiff explained that she was not interested in surgery

because her “legs generally do not bother her except during acute events in the past.” Tr. 354. In

addition, at her more recent specialist appointments, her physician recommended a workup to

determine whether Plaintiff had a clotting disorder that was contributing to her vascular

condition. Tr. 354, 357, 359. Indeed, the physician stated that he has “no doubt that she is

hypercoagulable given the fin[d]ings” from her ultrasound. Tr. 357. Plaintiff was reluctant. Tr.

357, 409 (noting she has not done the workup, declining referral to hematologist).3 Plaintiff has

not received much treatment for her knee pain, relying instead on ibuprofen, acetaminophen, and

other conservative treatments like strength training, bracing, and shoe inserts. Tr. 340, 405, 421,

440. Plaintiff did not pursue steroid injections, which were discussed with her by multiple

providers. Tr. 405, 440–41. Taken together, Plaintiff’s disinterest in determining the cause of her

venous condition and failure to take further steps to improve both her knee pain and DVT

constitute a clear and convincing reason to discount Plaintiff’s testimony. Cf. Turner v. Berryhill,

No. 3:17-CV-00431-HZ, 2018 WL 1256481, at *8 (D. Or. Mar. 10, 2018) (holding that the

ALJ’s decision to discount a plaintiff’s testimony due to conservative treatment was

unreasonable when the plaintiff had undergone multiple interventional procedures to address her

venous insufficiency; surgery was recommended only as a last resort; and the pain was bearable

with the use of pain medication, compression stockings, and elevating her legs).

C. Lack of Support from the Objective Medical Evidence

The ALJ is instructed to consider objective evidence in considering a claimant’s

symptom allegations. 20 C.F.R. § 416.929(c)(2) (“Objective medical evidence . . . is a useful

indicator to assist us in making reasonable conclusions about the intensity and persistence of

your symptoms[.]”). Inconsistency between a claimant’s testimony and the objective medical

record is a valid reason to discount their testimony. See Connett v. Barnhart, 340 F.3d 871, 874

3 Plaintiff argues that a lack of insurance and financial constraints were barriers to treatment.

However, the record does not clearly support this statement. Plaintiff did voice some insurance

and cost concerns to her vascular specialist, Tr. 355 (notes patient contemplating cost of

hypercoagulable workup and provider offers to provide order sheet to have drawn at primary

care provider’s clinic), 357 (notes losing insurance in four months), but Plaintiff continued to

receive care from her primary care provider and rheumatologist after these appointments and did

not follow-up further with her vascular specialist or proceed with his recommended workup and

treatment.

(9th Cir. 2003) (affirming the ALJ’s credibility finding when the plaintiff’s testimony of weight

fluctuation conflicted with the medical record). And in some cases, the ALJ can discount

claimant testimony when that testimony is not supported by the objective medical record. See

Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d at 1196 (9th Cir. 2007) (“‘Graphic and expansive’

pain symptoms could not be explained on a physical basis” by claimant’s physician); Burch v.

Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (The ALJ could consider mild findings on MRIs and

X-rays in discounting the plaintiff’s testimony as to her back pain.). But “the Commissioner may

not discredit the claimant’s testimony as to the severity of symptoms merely because they are

unsupported by objective medical evidence.” Reddick, 157 F.3d at 722.

The ALJ found that Plaintiff’s allegations were not supported by the objective evidence.

Tr. 14. The ALJ acknowledged evidence supporting Plaintiff’s claims of osteoarthritis in

Plaintiff’s knees, atrophy in her legs, edema, varicosities, and associated limited range of motion

and slow gait. Tr. 15. But the ALJ determined that “more frequently during examinations in the

record the claimant presents with no/minimal edema or swelling, a normal to mildly limited

range of motion, and a steady gait.” Tr. 15.

The ALJ’s finding is not supported by substantial evidence. Here, the objective evidence

supports Plaintiff’s testimony as to the severity of her venous condition. In 2015, when Plaintiff

stopped working after two days at a new job, she had a doctor’s appointment in which she

reported significant pain after walking for two days at her job and was referred for a doppler

ultrasound the next day to screen for DVT. Tr. 307–09. In chart notes, physicians document her

chronic edema in her lower extremities and imaging showing extensive DVT. Tr. 281–83, 346,

359, 357. One specialist stated that imaging showed “one of the worst cases” of deep and

superficial reflux he “[had] ever seen.” Tr. 357. Similarly, imaging of her knees showed near

bone-on-bone contact and osteoarthritis with significant degenerative changes. Tr. 405, 440.

Because the objective medical evidence overwhelmingly supports Plaintiff’s allegations, this is

not a clear or convincing reason for discounting Plaintiff’s testimony.

II. Medical Opinion Evidence

Plaintiff argues that the ALJ erred in failing to discuss the opinion of David DeHaas,

MD. Dr. DeHaas wrote a letter on behalf of Plaintiff on September 4, 2015. Dr. DeHaas

indicated that Plaintiff has a “longstanding history of venous hypertension and deep and

superficial venous incompetence of her lower extremities bilaterally.” Tr. 280. According to Dr.

DeHaas, Plaintiff’s condition has involved ulcers in her lower extremities and intense leg

cramping when she stands for a long period of time. Tr. 280. Dr. DeHaas recommended that this

“be a consideration concerning her ability to work and stand for extended periods of time.” Tr.

280.

There are three types of medical opinions in social security cases: those from treating,

examining, and non-examining doctors. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If no

conflict arises between medical source opinions, the ALJ generally must accord greater weight to

the opinion of an examining physician over that of a reviewing physician. Id. If a treating or

examining physician’s opinion is not contradicted by another physician, the ALJ may reject it

only for clear and convincing reasons. Id.; Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir.

2006). Even if one physician 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. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. However, the ALJ may reject

physician opinions that are “brief, conclusory, and inadequately supported by clinical findings.”

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

The ALJ errs when he rejects a medical opinion by ignoring it. Garrison, 759 F.3d at

1012–13. “The Secretary, however, need not discuss all evidence presented to her. Rather, she

must explain why ‘significant probative evidence has been rejected.’” Vincent on Behalf of

Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984) (quoting Cotter v. Harris, 642 F.2d

700, 706 (3d Cir.1981)) (emphasis in original). Further, the harmless error analysis applies to the

improper rejection of the opinion of a treating source. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th

Cir. 2015). In Social Security cases, errors are “harmless when they ‘are inconsequential to the

ultimately nondisability determination’” such that “‘no reasonable ALJ, when fully crediting the

testimony, could have reached a different disability determination.’” Id. (quoting Stout, 454 F.2d

at 1055–56).

Here, the ALJ erred by failing to address the letter from Dr. DeHaas because it included

information about the nature and severity of Plaintiff’s impairments, including symptoms and

limitations due to her venous conditions. See 20 C.F.R. § 404.1527(a)(1). The error, however,

was harmless. The only restriction identified by Dr. DeHaas was Plaintiff’s inability to stand for

extended periods of time due to ulcers and intense leg cramping. It is the ALJ’s role to translate

limitations in medical opinions into “concrete restrictions,” see Stubbs-Danielson v. Astrue, 539

F.3d 1169, 1174 (9th Cir. 2008), and the light RFC here does not necessarily conflict with Dr.

Haas’s opinion, see 20 C.F.R. § 404.1567(b) (“[A] job is [light] when it requires a good deal of

walking or standing, or when it involves sitting most of the time with some pushing and pulling

of arm or leg controls.” (emphasis added)); SSR 83-10, 1983 WL 31251 (light work can involve

sitting most of the time or can involve a “good deal of walking or standing”; because light work

requires frequent lifting, “the full range of light work requires standing or walking, off and on,

for a total of approximately 6 hours in an 8-hour workday”). Moreover, it is not an error for the

ALJ to reject an opinion because it vague or lacks specific functional limitations, like Dr.

DeHass’s letter here. See Samuel P. v. Comm’r of Soc. Sec., No. 20-5881, 2021 WL 5769404, at

*6 (W.D. Wash. Dec. 6, 2021) (“[A] finding that a medical opinion does not contain specific

functional limitations, or is otherwise too vague to be useful in making a determination, can

serve as a valid reason for discounting that opinion (citing Meanel v. Apfel, 172 F.3d 1111,

1113–14 (9th Cir. 1999)); Athanas v. Comm’r of Soc. Sec. Admin., No. CV-20-02292-PHX-

MTL, 2021 WL 5578182, at *9 (D. Ariz. Nov. 30, 2021) (finding the ALJ was reasonable in

affording a doctor’s opinion little weight where the doctor concluded the plaintiff “would require

‘some’ instructions and that her mental condition presented ‘some limitations’”).

III. Other Medical Source

Plaintiff argues that the ALJ erred in giving limited weight to the opinion of Lauren Bell,

PA. Bell completed a treating source statement regarding Plaintiff’s conditions on February 21,

2019. Tr. 400. Bell saw Plaintiff twice before her evaluation. Tr. 400. She diagnosed Plaintiff

with “HTN, prothrombic syndrome of LE, fatty liver disease, elevated liver enzymes, obesity,

osteoarthritis knees B/L, anemia, dyslipidemia, and type 2 diabetes.” Tr. 400. Bell described

Plaintiff’s signs and symptoms as knee pain, difficulty standing, the need to elevate her feet due

to edema, blood clots, venous ulcers, osteophytes in her knees, and tilting of the patella. Tr. 401.

Bell opined that Plaintiff would need to rest and lie down during the day for a half hour due to

pain and swelling. Tr. 401. She also opined that Plaintiff can walk eight blocks without rest or

significant pain, sit for sixty minutes at a time, stand or walk for ten minutes at a time, sit for a

total of twenty minutes in an eight-hour workday, and stand or walk for ten minutes in an eight-

hour workday. Tr. 402. According to Bell, Plaintiff would need a job which allowed her to shift

positions at will and take unscheduled ten- or fifteen-minute breaks every half hour due to her

edema and pain. Tr. 402. Bell opined Plaintiff can never lift and would be off task 25% or more

of the day. Tr. 403. She also stated that Plaintiff would miss more than four days of work per

month due to her edema, ulcers, and pain. Tr. 404.

Physician Assistants are not considered acceptable medical sources. 20 C.F.R.

§ 404.1513(d)(1) (2013). Information from medical sources other than “acceptable medical

sources” may provide insight into “the severity of the impairment(s) and how it affects the

individual’s ability to function.” SSR 06-03p, 2006 WL 2329939. The ALJ must consider

several factors when evaluating the opinion of such sources, including: (1) length of relationship

and frequency of contact; (2) consistency of opinion with other evidence; (3) quality of source’s

explanation for opinion; (4) any specialty or expertise related to impairment; and (5) any other

factors tending to support or refute the opinion. See SSR 06-03p, 2006 WL 2329939; 20 C.F.R. §

404.1527(c)(2). Under Ninth Circuit law, evidence from “other sources” is considered under the

same standard as that used to evaluate lay witness testimony, meaning the ALJ may reject it for

reasons germane to the witness. Molina, 674 F.3d at 1111 (Because a physician’s assistant was

not an acceptable medical source, the ALJ could discount a physician’s assistant’s opinion for

germane reasons).

The ALJ gave limited weight to the limitations described by Bell because of: (1) the short

treating relationship between Plaintiff and Bell; (2) Plaintiff’s regular exercise; and (3) Bell’s

failure to give a clear basis for the identified limitations. Tr. 15–16. At least two of these reasons

are germane and supported by substantial evidence. First, Bell saw Plaintiff only twice in

January 2019 before providing her treating source statement. Tr. 400. Though Plaintiff saw a

different practitioner in the same practice before seeing Bell, these appointments were almost a

year before Plaintiff saw Bell and limited to only two appointments. Tr. 425–433; See Nichols v.

Berryhill, 722 F. App’x 650, 652 (9th Cir. Jan. 23, 2018) (noting that a short duration of contact

with a non-acceptable medical source is a germane reason for rejecting their opinion); Reed v.

Colvin, No. 6:15-cv001924-HZ, 2016 WL 6609179, *14 (D. Or. Nov. 8, 2016) (finding that the

ALJ properly rejected the opinion of a non-acceptable medical source when it was issued after

treating the plaintiff for a few months and after five visits). Second, Bell failed to provide context

or support for at least some of the identified limitations, and the Court cannot find it in her

medical records. For example, Bell stated that Plaintiff would miss more than four days of work

per month and could not lift at all because of her conditions, but there is no support for these

limitations in Bell’s chart notes, which generally describe Plaintiff’s health conditions,

summarize her self-reported issues with standing and sitting, and note observations of atrophy

and edema in her lower extremities. Tr. 413–424; SSR 06-10p, 2006 WL 2329939 (in

considering opinions from other sources, the ALJ can consider “[h]ow well the source explains

the opinion”); cf. Popa v. Berryhill, 872 F.3d 901, 907 (9th Cir. 2017) (finding that the rejection

of an “other source” for using a check-box form was improper where the provider was the

plaintiff’s primary care provider who saw the plaintiff on a regular basis for more than two

years). The ALJ therefore did not err in giving limited weight to Bell’s opinion.

IV. Lay Witness Testimony

Plaintiff argues the ALJ erred in giving limited weight to lay witness statements from

Plaintiff’s husband, Plaintiff’s daughter, and a former co-worker. All three witnesses provided

letters in April 2019 in support of Plaintiff’s claim for benefits. Tr. 267–69. All three observed

that Plaintiff had a difficult time sitting or standing without pain and would require time to

elevate her feet to alleviate the pain and swelling. Tr. 267–69. They described a significant

decrease in Plaintiff’s mobility and functioning in recent years. Tr. 267–69. Her coworker also

noticed difficulty lifting items. Tr. 269.

“Lay testimony as to a claimant’s symptoms or how an impairment affects the claimant’s

ability to work is competent evidence that the ALJ must take into account.” Molina, 674 F.3d at

1114 (citation omitted). The ALJ must give reasons “germane to the witness” when discounting

the testimony of lay witnesses. Valentine, 574 F.3d at 694. The ALJ is not required, however, “to

discuss every witness’s testimony on an individualized, witness-by-witness basis.” Molina, 674

F.3d at 1114. If the ALJ gives valid germane reasons for rejecting testimony from one witness,

the ALJ may refer only to those reasons when rejecting similar testimony by a different witness.

Id. Additionally, where “lay witness testimony does not describe any limitations not already

described by the claimant, and the ALJ's well-supported reasons for rejecting the claimant's

testimony apply equally well to the lay witness testimony,” any error by the ALJ in failing to

discuss the lay testimony is harmless. Id. at 1117, 1122.

The ALJ gave some weight to the lay witness statements from Plaintiff’s husband,

Plaintiff’s daughter, and a former co-worker. Tr. 16. The ALJ discounted their statements

because they “do not appear to be supported by the objective medical evidence.” Tr. 16. The ALJ

also noted that the observations “lack sufficient specificity to provide clear insight into [her]

limitation[s]” because they use phrases like “for any length of time” and “for a spell,” which

“diminishes the utility of the statements.” Tr. 16.

The ALJ’s reasoning is germane and supported by substantial evidence. None of the lay

witnesses described specific restrictions, using instead the vague language described by the ALJ.

Tr. 267–69; cf. Meanel, 172 F.3d at 1113–14 (where a treating physician’s letter failed to explain

the extent or significance of the plaintiff’s “decreased concentration skills,” the ALJ did not err

in rejecting his opinion). Further, the lay witness testimony does not describe any limitations

beyond those described by Plaintiff, and the same reasons that were sufficient to discount

Plaintiff’s testimony—inconsistency with activities of daily living and course of conservative

treatment—apply equally to the testimony of these lay witnesses. See Molina, 674 F.3d at 1123.

Accordingly, the ALJ did not err.

CONCLUSION

Based on the foregoing, the Commissioner’s decision is AFFIRMED.

IT IS SO ORDERED.

DATED:___M_a__rc_h_ _2_4_,_ 2_0_2__2_______.

__________________________________

MARCO A. HERNÁNDEZ

United States District Judge