# Ryan v. Commissioner Social Security Administration

> District Court, D. Oregon · January 4, 2023

URL: https://www.frixlaw.com/law-library/cases/10395506

## Case

- **Court:** District Court, D. Oregon
- **Decided:** January 4, 2023
- **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

KAYLA R.,1 No. 6:22-cv-00084-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,

Defendant.

John E. Haapala , Jr.
401 E. Tenth Avenue
Suite 240
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.
Frederick D. Fripps
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 Kayla R. 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 March 19, 2019, alleging an onset date of September 2,
2018. Tr. 189.2 Plaintiff’s date last insured (“DLI”) is December 31, 2022. Her application was
denied initially and on reconsideration. Tr. 65, 79. On January 27, 2021, Plaintiff amended her
alleged onset date to March 19, 2019. Tr. 188.
On February 3, 2021, Plaintiff appeared with counsel for a hearing before an
Administrative Law Judge (“ALJ”). Tr. 30-64. On April 7, 2021, the ALJ found Plaintiff not
disabled. Tr. 13-24. The Appeals Council denied review. Tr. 1-6.
FACTUAL BACKGROUND
Plaintiff alleges disability based on Sjogren’s syndrome, fibromyalgia, and post-traumatic
stress disorder (“PTSD”). Tr. 193. At the time of her alleged onset date, Plaintiff was 31 years
old. Tr. 189. Plaintiff has a high-school education and past relevant work experience as a
“manager (cashier II)” and “customer service representative (customer support specialist).”

2 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative
record, filed herein as Docket No. 9.
Tr. 23.
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). 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). 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). 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). 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). 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). If the Commissioner meets the
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.
THE ALJ’S DECISION

At step one, the ALJ found Plaintiff did not engage in substantial gainful activity after her
March 19, 2019 amended alleged onset date. Tr. 15. Next, at steps two and three, the ALJ
determined that Plaintiff has the following severe impairments: Sjogren’s syndrome,
fibromyalgia, a major depressive disorder, PTSD, and a traumatic brain injury (“TBI”). Tr. 15.
However, the ALJ determined that Plaintiff’s impairments did not meet or medically equal the
severity of a listed impairment. Tr. 16. 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:
[S]he can lift, carry, push, or pull 20 pounds occasionally and 10 pounds
frequently. She can sit, stand, or walk for six hours each in an eight-hour day. She
can perform simple, routine tasks, and make only simple work-related decisions.
She can occasionally interact with supervisors, coworkers, and the public. The
claimant's time off task can be accommodated by normal breaks.

Tr. 18. At step four, the ALJ concluded that Plaintiff cannot perform her past relevant work.
Tr. 23. At step five the ALJ found there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform, such as cleaner, marker, and small products assembler.
Tr. 24. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 24.
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 contends the ALJ erred when he (1) found the opinion of William Trueblood,
Ph.D., to be unpersuasive; (2) partially rejected Plaintiff’s testimony; and (3) partially rejected

the lay-witness statement of Plaintiff’s mother, Doris P.
I. Medical Opinion Evidence
Plaintiff contends the ALJ erred when he found the Dr. Trueblood’s January 6, 2021
Medical Source Statement to be unpersuasive.
New regulations about weighing medical opinion evidence apply to claims filed on or
after March 27, 2017. Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819,
82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. Under the new regulations, ALJs
are no longer required to give deference to any medical opinion, including treating source
opinions. Id. Instead, the agency considers several factors. 20 C.F.R. § 404.1520c(a). These are:
supportability, consistency, relationship to the claimant, specialization, and “other factors.” 20
C.F.R. § 404.1520c(c)(1)-(5). The “most important” factors in the evaluation process are
supportability and consistency. 20 C.F.R. § 404.1520c(b)(2).
Under this framework, the ALJ must “articulate . . . how persuasive [they] find all of the
medical opinions” from each doctor or other source. 20 C.F.R. § 404.1520c(b). In doing so, the

ALJ is required to explain how supportability and consistency were considered and may explain
how the other factors were considered. 20 C.F.R § 404.1520c(b)(2). When two or more medical
opinions or prior administrative findings “about the same issue are both equally well-supported
. . . and consistent with the record . . . but are not exactly the same,” the ALJ is required to
explain how the other factors were considered. 20 C.F.R. § 404.1520c(b)(3). “Even under the
new regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported
or inconsistent without providing an explanation supported by substantial evidence.” Woods v.
Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022).
On November 5, 2020, Dr. Trueblood conducted a neuropsychological evaluation of

Plaintiff during which he administered the following tests and procedures: Wechsler Adult
Intelligence Scale-Fourth Edition, Wechsler Memory Scale-Fourth Edition, California Verbal
Learning Test-Second Edition (CVLT-II), Word Memory Test, Trail Making Test, Controlled
Oral Word Association Test (COWAT) - FAS version, Semantic fluency task (animal naming),
Rey-Osterrieth Complex Figure (ROCF), Clock Drawing Test, Behavior Rating Inventory of
Executive Function - Adult Version. Tr. 711. Dr. Trueblood concluded Plaintiff did not have any
impairment in her visuospatial, semantic, or verbal skills and “possible mild impairment” in her
working memory and processing speed. Tr. 710. Dr. Trueblood found Plaintiff had moderate
impairment in “memory or retention of information after a delay” and in her executive skills. Id.
Specifically, Plaintiff has “significant dysexecutive syndrome particularly characterized by
disinhibition, such as irritability, temper problems and outspokenness that may be mildly
inappropriate (such as occurring in public settings).” Tr. 710. However, Dr. Trueblood noted his
impression regarding dysexecutive syndrome was “tentative; it is based in part on Kayla's
mother's report.” Id. In his narrative report Dr. Trueblood explained Plaintiff’s working memory

“that is, her ability to hold information in mind and think with it, is likely in the average range
and is rated as normal,” her processing speed is in the average or slightly below average range
and is “mildly impaired,” her “learning and memory test results are . . . consistent with
approximately moderate impairment . . . although possibly a rating of mild to moderate would
be appropriate,” and she has a “probable mild impairment in executive functioning.” Tr. 713-15.
On January 6, 2021, Dr. Trueblood completed a medical source statement based on the
neuropsychological evaluation he conducted in November 2020. Dr. Trueblood indicated
Plaintiff’s “performance or productivity” would be “precluded” for “30% of an 8-hour work
day” in her ability to understand, remember, and carry out detailed instructions; “to maintain

attention and concentration for extended periods (the approximately 2-hour segments between
arrival and first break, lunch, second break, and departure)”; “to complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods”; and “to set realistic
goals or to make plans independently of others.” Tr. 724-26. Dr. Trueblood stated Plaintiff’s
performance or productivity was precluded for “20% of an 8-hour work day” in all other areas
except her ability to understand, remember, and carry out very short and simple instructions and
to make simple, work-related decisions. Dr. Trueblood opined Plaintiff would be off task more
than 30% of an eight-hour workday due to “substantial deficits in learning/memory and
executive skills [that] would very likely preclude [Plaintiff] from satisfactorily performing many
types of tasks on almost any type of job.” Tr. 727.
The ALJ found Dr. Trueblood’s opinion to be unpersuasive on the basis that the degree of
limitation outlined by Dr. Trueblood is not supported by his own examination findings “which
showed only moderate impairment in learning, memory, and executive function, with possible

mild impairment in processing speed and working memory.” Tr. 22. The record supports the
ALJ’s reasoning. In his November 5, 2020 neuropsychological evaluation Dr. Trueblood did not
find Plaintiff to be severely limited in any areas. As noted, Dr. Trueblood indicated Plaintiff does
not have any impairment in her visuospatial, semantic, or verbal skills and “possible mild
impairment” in her working memory and processing speed. Tr. 710. Dr. Trueblood found
Plaintiff has a moderate impairment in “memory or retention of information after a delay” and
tentatively found Plaintiff has a possible dysexecutive syndrome. Id. Dr. Trueblood explained
Plaintiff’s working memory “is likely in the average range and is rated as normal,” her
processing speed is in the average or slightly below average range and is “mildly impaired,” her

“learning and memory test results are . . . consistent with . . .moderate impairment” or mild-to-
moderate impairment, and she has a “probable mild impairment in executive functioning.” Tr.
713-15. These findings from Dr. Trueblood’s extensive testing do not support the severe
limitations that Dr. Trueblood suggested in his January 2021 Medical Source Statement.
In addition, Plaintiff does not point to any opinion by a medical professional that supports
the severity of limitations suggested by Dr. Trueblood in his January 2021 Medical Source
Statement. In fact, on May 30, 2019, reviewing psychologist Scott Kaper, Ph.D., indicated
Plaintiff has a only a mild limitation in her ability to concentrate, persist, or maintain pace.
Tr. 74. On May 5, 2020, reviewing psychologist Diane Kogut, Ph.D., reached the same
conclusion. Tr. 89. On January 7, 2020, treating provider Mayra Dennis, FNP, performed the
Montreal Cognitive Assessment and found Plaintiff scored “25/30,” which indicates no or very
mild cognitive impairment. Tr. 532. On December 28, 2020, treating physician Anthony Kahr,
M.D., completed a Medical Assessment Form in which he indicated that Plaintiff suffers from

fibromyalgia and Sjogren syndrome, but noted he was “unable to assess” Plaintiff’s limitations.
Tr. 718-23.
On this record the Court concludes the ALJ did not err when he found Dr. Trueblood’s
opinion to be unpersuasive because the ALJ provided clear and convincing reasons for doing so
based on substantial evidence in the record.
II. Subjective Symptom Testimony
Plaintiff alleges the ALJ erred when he partially rejected Plaintiff’s testimony.
The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL
5180304, at *1 (Oct. 25, 2017). The ALJ engages in a two-step analysis for subjective symptom

evaluation. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (superseded on other
grounds). 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.” Id. (internal quotations omitted). 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.” Id. (internal quotations 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 testified at the hearing that she stopped working in March 2019 because she felt
that she could no longer perform her job duties and could not “show up at the times that they
needed [her] to anymore” due to her symptoms of dryness, pain, and digestive issues, which
Plaintiff found to be “completely overwhelming.” Tr. 41. Plaintiff stated that her symptoms have
escalated since she stopped working. Plaintiff has “a lot” of headaches, cognitive disfunction,
brain fog, and memory loss. Tr. 41. Plaintiff has “constant memory loss” and fatigue every day.

Tr. 41-42. Plaintiff testified the medications she takes for Sjogren’s syndrome and fibromyalgia
cause fatigue and malaise. Plaintiff stated she can stand for 45 to 60 minutes at one time. Tr. 44.
She needs to lie down or to recline three or four times per day for 20 or 30 minutes at a time and
she has “problems using her hands.” Tr. 45. Specifically, she is “constantly dropping things . . .
or not able to grasp” approximately “40 to 50 times a day.” Tr. 45. Plaintiff has headaches
“where [she] ha[s] to . . . remove [herself] . . . or go in a dark room . . . a few times a day.” Tr.
45-46. Plaintiff has restless leg syndrome that keeps her from sleeping well “half of the week.”
Tr. 46. Plaintiff has trouble doing chores and prepares only microwave meals because of pain
and fatigue. Plaintiff also has “a lot of anxiety” and does not “trust anybody.” Tr. 48. Plaintiff
does not “have the ability to keep [her] mood consistent because of . . . irritability. . . . [When
she] get[s] irritable or angry it’s . . . not easy for [her] to get back out of it again. It’s really hard
for [her] to control.” Tr. 48. Plaintiff does not always understand instructions and has trouble
keeping track of things like appointments. Plaintiff does not “have the ability to concentrate long
enough to get a project done” and can “only concentrate . . . five or ten minutes on a video

game.” Tr. 52.
The ALJ found Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms,” but Plaintiff’s “statements concerning the intensity,
persistence and limiting effects of [her] symptoms are not entirely consistent with the medical
evidence and other evidence in the record.” Tr. 19. Specifically, the ALJ noted with respect to
Plaintiff’s mental-health impairments that Dr. Trueblood’s neuropsychological evaluation
indicated Plaintiff had mild-to-moderate impairments and did not support the intensity or
severity of the mental impairments alleged by Plaintiff. The ALJ also noted at the hearing that in
contrast to Plaintiff’s testimony that she can concentrate for only five or ten minutes on a video

game, Plaintiff told a medical provider in March 2020 that she “stays busy playing a game that
she loves on her computer.” Tr. 52, 642.
As to Plaintiff’s physical impairments the ALJ found although Plaintiff has fibromyalgia,
TBI, and Sjogren’s syndrome, physical examinations reflected full visual fields, intact
extraocular movements without nystagmus, equally round and reactive pupils, a symmetric face
when activated, intact facial sensation, intact hearing, an elevated palate, full shoulder shrug,
midline tongue protrusion, normal salivary pooling, with no synovitis, no swollen joints, no joint
tenderness, full range of motion, normal bulk and tone with full strength throughout, absent
Romberg, intact coordination, intact heel toe walking, and intact sensation, reflexes. In addition,
although Plaintiff testified to severe and constant problems with grip, the record does not reflect
any findings of inflammatory arthritis, neurosjogren’s symptoms, synovitis, deformity or tophi,
swollen joints, or joint tenderness.
The ALJ also relied on the opinions of reviewing physicians Peter Bernardo, M.D., and
William Harrison, M.D., who found Plaintiff can frequently lift 10 pounds and occasionally lift

20 pounds and can stand, sit, and/or walk for six hours in an eight-hour workday. Tr. 78 ,90. The
ALJ incorporated these physical limitations into his assessment of Plaintiff’s RFC.
The Court concludes on this record that the ALJ did not err when he partially rejected
Plaintiff’s testimony regarding the intensity, persistence, and limiting effects of her symptoms
because the ALJ provided specific, clear, and convincing reasons supported by substantial
evidence in the record for doing so.
III. Lay Witness Testimony
Plaintiff alleges the ALJ erred when he partially rejected the lay-witness statement of
Plaintiff’s mother, Doris P.

“Lay testimony as to a claimant’s symptoms is competent evidence that the Secretary
must take into account.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citation
omitted); 20 C.F.R. § 404.1529(c)(1) (“In evaluating the intensity and persistence of your
symptoms, we consider all of the available evidence from your medical sources and nonmedical
sources about how your symptoms affect you.”). Under the 2017 regulations, the ALJ is not
“required to articulate how [they] considered evidence from nonmedical sources” using the same
criteria required for the evaluation of medical sources. 20 C.F.R. § 404.1520c(d). Under the new
regulations, however, the ALJ must still articulate their assessment of lay witness statements.
Tanya L.L. v. Comm’r Soc. Sec., 526 F.Supp.3d 858, 869 (D. Or. 2021).
The ALJ must give reasons “germane to the witness” when discounting the testimony of
lay witnesses. Valentine, 574 F.3d at 694. But the ALJ is not required “to discuss every witness’s
testimony on an individualized, witness-by-witness basis.” Molina, 674 F.3d at 1114, superseded
on other grounds by 20 C.F.R. § 404.1502(a). 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.
On September 13, 2019, Doris P., completed a Third Party Adult Function Report in
which she stated Plaintiff’s fibromyalgia pain limits her ability to “move or do anything.”
Tr. 226. Plaintiff does not sleep well due to headaches and pain. Plaintiff makes herself “one
course meals of healthy food” daily and does dishes, but it takes her at least one hour to cook and
to clean up. Plaintiff shops for groceries once a week and it takes “anywhere from 1 to 3 hours.”

Tr. 229. Plaintiff has brain fog, irritability, and “extreme mood swings.” Tr. 230. Plaintiff can
walk 100 feet before needing to stop and rest and can pay attention for five-to-ten minutes at a
time. Plaintiff can follow written instructions “somewhat,” can follow spoken instructions
“well,” and gets along well with authority figures. Tr. 231. Doris P. also noted Plaintiff has
“extreme panic attacks from her PTSD” and has weakness “just standing there visiting with”
Doris P. Tr. 233.
The ALJ considered Doris P.’s statement, but “found [it] neither inherently valuable, nor
persuasive when compared to the objective medical evidence.” Tr. 22. Doris P.’s statement is
substantially similar to Plaintiff’s testimony. The Court has already concluded the ALJ did not
err when he partially rejected Plaintiff’s testimony because the ALJ provided support for his
opinion based on substantial evidence in the record. The Court also concludes on the same basis
that the ALJ did not err when he partially rejected Doris P.’s statement.
CONCLUSION
Based on the foregoing, the Commissioner’s decision is AFFIRMED.

IT IS SO ORDERED.
DATED:____J_a_n_u_a_r_y_ 4__, _2_0_2_3______

__________________________________
MARCO A. HERNÁNDEZ
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395506. Public record. Not legal advice.