# Meredith v. Commissioner, Social Security Administration

> District Court, D. Oregon · November 8, 2022

URL: https://www.frixlaw.com/law-library/cases/10395535

## Case

- **Court:** District Court, D. Oregon
- **Decided:** November 8, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- stating that “the ALJ improperly singled out a few periods of temporary well-being from a sustained period of impairment and relied on those instances to discredit” the claimant
- stating that a Page 7 —- OPINION AND ORDER claimant’s activities have “bearing on [her] credibility” if the reported “level of activity” is “imconsistent with [the claimant’s] claimed limitations”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

CHRISTINA M., Case No, 1:20-cv-01022-AR
Plaintiff, OPINION AND ORDER
v.

COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.

ARMISTEAD, Magistrate Judge
In this judicial review of the Commissioner’s final decision denying Social Security
benefits, Christina (her last name omitted for privacy) challenges the Administrative Law
Judge’s evaluation of her subjective symptom testimony and of lay witness testimony. She also
contends that the ALJ should have ordered a psychological examination to supplement the record
and that the ALJ’s vocational finding at step five is not supported by substantial evidence. Pl. Br.

Page 1 — OPINION AND ORDER

at 7-11, ECF No. 18. As explained below, the ALJ did not err. The Commissioner’s decision is
AFFIRMED. |
ALJ’S DECISION
In denying Christina’s applications for Title II Disability Insurance Benefits (DIB) and
Title XVI Supplemental Security Income (SSI), the ALJ followed the five-step sequential
evaluation process,” The ALJ determined that Christina had severe psychological impairments
(major depressive disorder; anxiety; mood disorder; borderline personality disorder) and physical
impairments (obesity; migraines; tachycardia; mild left foot degenerative joint disease with heel
spurs; mild cervical degenerative disc disease; asthma; chronic fatigue syndrome; and
obstructive sleep apnea). Tr. 18. Christina’s reported symptoms were an inability to work due to
depression, anxiety, and back pain; difficulty working with the public; daily two- to three-hour
migraines requiring her to lay down in a dark and quiet place; constant fatigue; and “fleeting”
suicidal thoughts. Tr. 36, 39. 41, 44 46, 49, 52.
Regarding the RFC, the ALJ considered the evidence in the case record and found that
Christina’s medically determinable impairments explained some of her symptoms but that the
medical evidence and her reports of daily living were not entirely consistent with her statements
concerning the intensity, persistence, and limiting effects of her alleged symptoms. Tr, 22.

1 This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3), and all parties have
consented to jurisdiction by magistrate judge under Federal Rule of Civil Procedure 73 and 28
U.S.C. § 636(c).
2 To determine a claimant’s disability, the ALJ must apply a five-step evaluation. See 20
C.E.R. §§ 404,1520(a)(4), 416.920(a)(4). If the ALJ finds that a claimant is either disabled or not
disabled at any step, the ALJ does not continue to the next step. Id.; see also Parra v. Astrue, 481
F,3d 742, 746-47 (9th Cir. 2007) (discussing the five-step evaluation in detail).
Page 2 —- OPINION AND ORDER

Notably, the ALJ considered the extent to which Christina was able to care for her mother, her
friend’s dog and friend’s husband, and that she performed household chores and had some
crafting hobbies. Tr. 22. Further, the ALJ explained that Christina’s symptoms were either
intermittent, improving, did not interfere with her daily activities, or could be managed with
treatment. Tr. 22-24. Given those findings (and considering Christina’s age, education, and work
experience), the ALJ set out various physical and mental limitations in the RFC, including that
Christina “should perform only low stress work” that involves no public contact and occasional
coworker and supervisor contact. Tr. 21, With that RFC, the ALJ determined that were enough
jobs in the national economy that Christina could perform, such as photocopy machine operator,
collator operator, and inserting machine operator? Tr. 26-27.
DISCUSSION
The district court must affirm the Commissioner’s decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020), Substantial evidence is
“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation
and citation omitted). To determine whether substantial evidence exists, the court must weigh all
the evidence, whether it supports or detracts from the Commissioner’s decision. Garrison v,

3 As recently noted in White v. Kijakazi, 44 F.4th 828, 835 (9th Cir. 2022), the SSA has
been working on a transition to a new Occupational Information System since 2008. The
transition has not yet occurred, and the Ninth Circuit has encouraged the SSA, along with its
sister circuits, “to make the transition to a system that more accurately reflects available jobs in
the current economy.” Jd,
Page 3 —- OPINION AND ORDER

Colvin, 759 F.3d 995, 1009 (9th Cir. 2014), Christina advances four arguments challenging the
ALI’s decision, and the court, mindful of the standard of review, addresses each in turn,
A. Duty to Develop Record
Christina argues that, because the ALJ found the opinions of the state agency reviewing
doctors “not persuasive” and the medical record lacked medical source statements from
Christina’s own treating or examination providers assessing functional limitations, there were no
medical opinions upon which the ALJ could rely. In that event, Christina asserts that the ALJ
should have ordered a psychological consultative examination. See 20 C.F.R. § 404.1517 (If
your medical sources cannot or will not give us sufficient medical evidence about your
impairment for us to determine whether you are disabled or blind, we may ask you to have one
or more physical or mental examinations or tests.”), Without that examination, in Christina’s
view, the record was “insufficient to allow the agency to make a determination” and the ALI’s
RFC finding is therefore without substantial evidence. Pl. Br. at 5-6; Pl. Reply. Br. at 2, ECF No.
20.
Although the burden of demonstrating disability ultimately lies with the claimant, the
AL] “has a special duty to develop the record fully and fairly and to ensure that the claimant’s
interests are considered, even when the claimant is represented by counsel.” Mayes v. Massanari,
276 F.3d 453, 459 (9th Cir. 2001). That duty, however, is “triggered only when there 1s
ambiguous evidence or when the record is inadequate to allow for proper evaluation of the
evidence,” fd. at 459-60. When confronted with ambiguous evidence or a record inadequate to
permit proper evaluation of the evidence, the AL] should “conduct an appropriate inquiry.”
Smolen vy, Chater, 80 F.3d 1273, 1288 (9th Cir.1996), This inquiry may include (1) making a

Page 4 -- OPINION AND ORDER

reasonable attempt to obtain additional medical evidence from the claimant’s treating sources;
(2) ordering a consultative examination where the medical evidence is incomplete or unclear; (3)
subpoenaing the claimant’s physicians or their records; (4) continuing the hearing; and (5)
keeping the record open for supplementation. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th
Cir. 2001); 20 C.F.R. §§ 404.1517, 416.917; 42 U.S.C. § 423(d)(5)(A) & (B).
Christina has not demonstrated that the ALJ’s failure to order a psychological
consultative examination was error. Under 20 C.F.R. §§ 404.1517, the ALJ has discretion to
order a consultative examination if the claimant’s “medical sources cannot or will not give us
sufficient medical evidence about [the claimant’s] impairment” to make a disability
determination. See Kimberly S. y. Berryhill, Case No. 3:17-cv-1788-JR, 2018 WL 6424765, at *3
(D. Or. Nov. 19, 2018) (“The Commissioner ‘has broad latitude in ordering a consultative
examination.’” (quoting Diaz v. Sec. of Health and Hum. Servs., 898 F.2d 774, 778 (10th Cir.
1990))). Here, although the record lacked medical opinion statements from treating providers,
the ALJ still had ample evidence on which to base the RFC, including Christina’s testimony,
functional reports, and approximately 600 pages of medical records from her providers reflecting
treatment she received for anxiety, depression, and various physical impairments, Tr, 35-52, 222-
29, 282-905. The ALJ also left the record open for supplementation for ten days after the
hearing, leaving Christina the opportunity to submit medical source statements during that
period. Tr. 54; Chase v. Colvin, 665 F. App’x. 583, 586 (9th Cir, 2016) (“Even assuming
arguendo that further development of the record in this case was required, the ALJ satisfied this
duty by ‘keeping the record open after the hearing.’” (quoting Tonapetyan vy. Halter, 242 F.3d
1144, 1150 (9th Cir. 2001))). Given this evidence and opportunity for supplementation, the ALJ

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appropriately determined the record was sufficient for assessing the limitations imposed by
Christina’s alleged mental and physical limitations, without need for a consultative examination.
The ALJ did not err.
B. Subjective Symptom Testimony
Christina also argues that the ALJ improperly rejected her subjective symptom testimony.
In Christina’s view, the ALJ failed to articulate specific, clear and convincing findings in
discounting her symptom testimony, Christina maintains, contrary to the findings of the ALJ,
that her activities and improvements are not inconsistent with her testimony. Additionally, she
contends that the ALJ incorrectly singled out periods of well-being to discredit her testimony.
See Garrison, 759 F.3d at 1018 (stating that “the ALJ improperly singled out a few periods of
temporary well-being from a sustained period of impairment and relied on those instances to
discredit” the claimant). As the court explains, the ALJ’s findings were sufficiently specific,
clear and convincing.
To determine whether a claimant’s testimony about subjective pain or symptoms is
credible, an ALJ must perform two stages of analysis. Trevizo v. Berryhill, 871 F.3d 664, 678
(9th Cir, 2017); 20 C.F.R. § 416.929. The first stage is a threshold test in which the claimant
must produce objective medical evidence of an underlying impairment that could reasonably be
expected to produce the symptoms alleged. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d
1090, 1102 (9th Cir, 2014); Tommasetti v, Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the
second stage, absent affirmative evidence that the claimant is malingering, the ALJ must provide
clear and convincing reasons for discounting the claimant’s testimony about the severity of her
symptoms. Carmickle v. Comm’r Soc, Sec. Admin, 533 F.3d 1155, 1160 (9th Cir, 2008),

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Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (th Cir, 2007), The ALJ must make findings that
are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015).
Factors the ALJ may consider when making such credibility determinations include the objective
medical evidence, the claimant’s treatment history, the claimant’s datly activities, and
inconsistencies in testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013);
Tommasetti, 533 F.3d at 1039.
At the hearing and in function reports, Christina alleged that she is unable to work due to
depression, anxiety, and back pain. Tr. 36, 39. 41, 46. She reported difficulty working with the
public and noted that she was fired from a prior job for unprofessional conduct, including crying
every day at work, lashing out at people, and saying inappropriate things. Tr. 46. She testified
that she experiences migraines every day that last about two or three hours and require her to lay
down in a dark and quiet place. Tr. 44, She also alleged constant fatigue and “fleeting” suicidal
thoughts, Tr. 49, 52.
The ALJ made no finding of malingering and determined that Christina provided
objective medical evidence of underlying impairments which might reasonably produce the
symptoms alleged. Tr. 22. Nevertheless, the ALJ discounted the alleged severity, intensity, and
persistence of Christina’s symptom testimony as (1) inconsistent with her reported activities of
daily living and (2) inconsistent with evidence showing improvement with treatment. Tr. 22-25.
Christiana contends that neither reason is supported by substantial evidence. The court disagrees.
Turning to the first rationale, the ALJ appropriately found Christina’s symptom testimony
inconsistent with her reported activities. Tr. 22-24; Garrison, 759 F.3d at 1016 (stating that a

Page 7 —- OPINION AND ORDER

claimant’s activities have “bearing on [her] credibility” if the reported “level of activity” is
“imconsistent with [the claimant’s] claimed limitations”). Christina reported that in her free time,
she reads, plays games, goes shopping, watches television, cross-stitches, cares for her cats, and
performs chores, Tr, 222, 223, 226, She also cares for a friend’s dog and takes it on walks,
though she reported needing breaks on these walks due to her increased heart rate. Tr. 42. Most
notably, Christina testified that she serves as a caregiver for her mother — who has substantial
health and mobility issues — between eight and ten hours a day. Tr. 24, 35. In this role, Christina
takes her mother to appointments, manages her medication and meals, and completes her
shopping. Tr. 35-36.
The ALJ found Christina’s reports that she is unable to work due to her depression and
anxiety inconsistent with these activities. Specifically, the ALJ noted that Christina’s ability to
manage her mother’s medication undermined her own testimony that she often cannot remember
to take her own medications. Tr. 24. Likewise, the ALJ found the length of this reported care ~-
eight to ten hours a day — inconsistent with Christina’s allegation that she could not maintain
full-time work. Tr. 24. These findings are fully supported by substantial evidence in the record.
Based on the nature and duration of care Christina provides for her mother, the ALJ reasonably
could find that her daily activities are inconsistent with her allegations of total disability and
rationally discount her allegations on that basis.
Turning to the ALI’s second rationale, the court disagrees with Christina that the ALJ
cherry-picked isolated instances of well-being to discredit her testimony. The ALJ discounted
Christina’s subjective symptom testimony finding that her physical symptoms are inconsistent
with medical evidence showing improvement with treatment. Here, the treatment improvements

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on which the ALJ relies “constitute examples of a broader development to satisfy the applicable
‘clear and convincing’ standard.” Garrison, 759 F.3d at 1018. For instance, the ALJ noted that
despite Christina’s reports of severe neck pain and decreased range of motion in 2017,
examinations that year showed no reduced range of motion in her neck. Tr, 22 (citing Tr, 544-
52). The ALJ also noted that Christina’s reports of fatigue conflicted with 2016 and 2017
treatment notes, in which she did not present with fatigue and reported that fatigue was not
interfering with her daily activities. Tr. 22 (citing Tr. 501, 522, 554, 656). Christina also reported
improvement in her energy levels after beginning treatment with Adderall in late 2017, Tr. 22
(citing Tr. 685, 695-712). The ALJ also found that treatment appeared to improve Christina’s
social-based symptoms, noting that she reported gradual improvement on medication in 2017,
“feeling better overall” in 2018, and feeling less irritable and more high-energy in 2019, Tr, 24
(citing Tr. 629-31, 685, 695, 725, 732, 744, 764, 771-72, 784, 827-28, 876).
The ALJ was justified in relying on those sustained improvements and long periods
without complaints as a basis to discount the severity of her alleged physical symptoms. The
record shows that the ALJ’s assessment is reasonable and each reason is supported by substantial
evidence, See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the evidence is
susceptible to more than one rational interpretation, one of which supports the ALJ’s decision,
the ALJ’s conclusion must be upheld.”). Taken together, the ALJ’s reasons provide a specific,
clear and convincing basis to discredit the Christina’s subjective symptom testimony.
C. Lay Witness Testimony
Christina’s mother submitted a third-party function report on her behalf. Tr. 244-51. In
the report, her mother alleged that Christina has difficulty concentrating and getting along with

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others, handles stress poorly, has explosive emotional outbursts, and needs to set alarms to take
her prescribed medications. Tr. 244-51. Christina argues that the ALJ failed to provide germane
reasons to discount her mother’s testimony. See Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993)
(“If the ALJ wishes to discount the testimony of the lay witnesses, [the ALJ] must give reasons
that are germane to each witness,”’),
Lay witness testimony about a claimant’s symptoms is competent evidence that an ALJ
must consider unless she “expressly determines to disregard such testimony and gives reasons
germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001), An
exception to the rule applies, however, “[w]here lay witness testimony does not describe any
limitations not already described by the claimant, and the ALIJ’s well-supported reasons for
rejecting the claimant’s testimony apply equally well to the lay witness testimony.” Molina v.
Astrue, 674 F.3d 1104, 1118-19; see also Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685,
694 (9th Cir. 2009) (“In light of our conclusion that the ALJ provided clear and convincing
reasons for rejecting [the claimant’s] own subjective complaints, and because [the claimant’s
wife’s] testimony was similar to such complaints, it follows that the ALJ also gave germane
reasons for rejecting her testimony.”),
The symptoms testified to by Christina’s mother are largely consistent with Christina’s
own testimony. As explained above, the court has determined that ALJ properly discounted that
testimony with clear and convincing reasons supported by substantial evidence. Under Ninth
Circuit precedent, those reasons apply with equal force to discount the lay witness statement
from Christina’s mother in this context. Accordingly, the ALJ did not err.

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Step Five
At step five, the Commissioner has the burden “to identify specific jobs existing in
substantial numbers in the national economy that the claimant can perform despite [her]
identified limitations,” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995); 20 C.F.R $
416,920(g). In making this determination, the ALJ relies on the Dictionary of Occupational
Titles (DOT), which is the Social Security Administration’s “primary sources of reliable job
information” regarding jobs that exist in the national economy. Terry v. Sullivan, 903 F.2d 1273,
1276 (9th Cir. 1990); 20 C.F.R §§ 416.969, 416.966(d)(1). The DOT describes the requirements
for each listed occupation, including the necessary General Educational Development (GED)
levels-—-that is, the “aspects of education (formal or informal) . . . required of the worker for
satisfactory job performance.” DOT, App. C, 1991 WL 688702 (4th ed. 1991). The GED levels
include the reasoning ability required to perform the job, ranging from Level 1 (which requires
the least reasoning ability) to Level 6 (which requires the most). /d. As relevant to this dispute,
the DOT defines reasoning Level 1 and Level 2 as follows:
LEVEL 1
Apply commonsense understanding to carry out simple one- or two-step
instructions. Deal with standardized situations with occasional or no variables in
or from these situations encountered on the job.
LEVEL 2
Apply commonsense understanding to carry out detailed but uninvolved written
or oral instructions. Deal with problems involving a few concrete variables in or
from standardized situations.
DOT, App’x C, 1991 WL 688702 (4th ed. 1991).
The ALJ relies on the testimony of a vocational expert to identify specific occupations
that a claimant can perform in light of her RFC, 20 CFR § 416.966(e); Valentine, 574 F.3d at

Page 11 ~ OPINION AND ORDER

689. When there is an apparent conflict between the vocational expert’s testimony and the DOT,
the ALJ is required to reconcile that inconsistency by posing questions about the potential
conflict. See Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007), Nevertheless, if the ALI
fails to ask the vocational expert about the potential conflict, that “procedural error” may be
“harmless” if there is no conflict between the vocational expert’s testimony and the DOT. /d. at
1154 n.19.
Here, the ALJ found at step five that Christina could perform the occupations of
photocopy machine operator (DOT # 207.685-014), collator operator (DOT # 208.685-010), and
inserting machine operator (DOT #208.685-018). Tr. 26-27. Each of these occupations requires
GED Level 2 reasoning. See Pl. Br. at 5; Def. Br. at 11, Christina argues that this finding was not
supported by substantial evidence because (1) the ALJ did not include subjective and lay witness
reported limitations in her RFC and (2) there is an apparent conflict between the reasoning level
required for those occupations and the level set forth in her RFC,
Christina’s first argument is unavailing because, as explained above, the ALJ properly
discounted her subjective symptom testimony and the lay testimony of her mother. Therefore,
the ALJ was not required to incorporate those reported limitations into her RFC. See Stubbs-
Danielson, 539 F.3d at 1174 (an ALI’s hypothetical question to the vocational expert need not
include limitations which the ALJ has found to be not credible) (citing Batson vy. Comm’r. of Soc.
Sec, Admin., 359 F.3d 1190, 1195-96 (9th Cir. 2004)).
Christina’s second argument is not well developed. The court infers from Christina’s
scant paragraph that she is contending that the ALJ’s RFC is somehow internally inconsistent.
Christina appears to suggest that the ALJ’s statement that she is limited to “performl[ing] only

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low stress work, which is defined as requiring only occasional changes in work setting,
occasional changes in work duties, and no work on a conveyor belt” is consistent with only with
Level | reasoning. See Pl. Br. at 10 (underlining statement in RFC). Christina suggests the jobs
identified require her to handle more frequent variables or changes and are inconsistent with
Level 1 reasoning, and that the ALJ has not met his burden at step five. Christina neither
develops this argument nor points to any legal authority providing that either “low stress work”
or “occasional changes” restrict her exclusively to jobs with Level 1 reasoning. Moreover, this
argument is undermined by the ALJ’s explicit statement that she “can understand, remember and
carry out uninvolved and routine instructions that require only occasional predicable variations
from standard procedures (consistent with reasoning level 2).” Tr. 21 (emphasis added). Thus,
the ALJ explicitly found that Christina can perform work with Level 2 reasoning, which is
consistent with the occupations identified by the vocational expert.
In summary, because Christina’s RFC explicitly provides that she can work occupations
with Level 2 reasoning and because the vocational expert’s testimony is consistent with that
limitation, the ALJ’s step five finding is supported by substantial evidence and free of legal
error.
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CONCLUSION
For the reasons stated above, the court AFFIRMS the Commissioner’s final decision, and
this action is DISMISSED. □
IT IS SO ORDERED,
DATED November _¥_, 2022.

| EFFREY ARMISTEAD
United States Magistrate Judge

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