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 Plaintiff’s date of birth is redacted back to the year of birth in accordance with the

General Order of the Court regarding Public Access to Electronic Case Files, pursuant to the

official policy on privacy adopted by the Judicial Conference of the United States.

REPORT AND RECOMMENDATION RE:

SOCIAL SECURITY DISABILITY APPEAL

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MARYFRANCES BAILEY,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner

of Social Security

Defendant.

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CASE NO. C05-1496-JCC

REPORT AND RECOMMENDATION

RE: SOCIAL SECURITY

DISABILITY APPEAL

Plaintiff Mary Frances Bailey proceeds through counsel in her appeal of a final decision

of the Commissioner of the Social Security Administration (Commissioner). The Commissioner

denied plaintiff’s application for Disability Insurance (DI) benefits after a hearing before an

Administrative Law Judge (ALJ). Having considered the ALJ’s decision, the administrative record

(AR), and all memoranda of record, it is recommended that this matter be AFFIRMED.

FACTS AND PROCEDURAL HISTORY

Plaintiff was born on XXXX,1943.1 She completed high school and an associate’s degree

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in business. Plaintiff previously worked as an information technology specialist and business

analyst for U.S. West/Qwest. She applied for SSI in May 2001, alleging disability since April 2,

2001 due to the residual effects of a stroke she suffered on that same date and blood clotting. Her

application was denied initially and on reconsideration, and she timely requested a hearing.

ALJ Verrell Dethloff held a hearing on September 29, 2004, taking testimony from plaintiff

and her daughter, Mary Wideman-Williams. (AR 524-50.) He issued a decision finding plaintiff

not disabled on December 28, 2004. (AR 14-24.)

Plaintiff timely appealed. On August 19, 2005, the Appeals Council denied her request for

review. (AR 6-9.) Plaintiff appealed this final decision of the Commissioner to this Court.

JURISDICTION

The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).

DISCUSSION

The Commissioner follows a five-step sequential evaluation process for determining

whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must

be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not

engaged in substantial gainful activity since her alleged onset date. At step two, it must be

determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff’s

residuals from a right cerbrovascular accident/lacunar stroke with left hemiparesis severe. Step

three asks whether a claimant’s impairments meet or equal a listed impairment. The ALJ found

that plaintiff’s impairment did not meet or equal the criteria for any listed impairments. If a

claimant’s impairments do not meet or equal a listing, the Commissioner must assess RFC and

determine at step four whether the claimant has demonstrated an inability to perform past relevant

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work. The ALJ found plaintiff able to perform her past relevant work as an information

technology specialist and business analyst for a telephone company. If a claimant demonstrates

an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate

at step five that the claimant retains the capacity to make an adjustment to work that exists in

significant levels in the national economy. Finding plaintiff not disabled at step four, the ALJ did

not proceed to step five.

This Court’s review of the ALJ’s decision is limited to whether the decision is in

accordance with the law and the findings supported by substantial evidence in the record as a

whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more

than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750

(9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s

decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

2002).

Plaintiff argues that the ALJ should have found her blood disorder and cognitive residual

difficulties to be severe impairments at step two, did not properly consider the medical evidence

in the record, failed to give clear and convincing reasons for discrediting her, improperly dismissed

lay witness evidence, and should have called a vocational expert. She asks that the Court remand

this matter for an award of benefits or, alternatively, for further administrative proceedings. The

Commissioner argues that the ALJ’s decision is supported by substantial evidence and should be

affirmed. For the reasons described below, the undersigned agrees with the Commissioner that

this matter should be affirmed.

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Step Two

At step two, plaintiff must make a threshold showing that her medically determinable

impairments significantly limit her ability to perform basic work activities. See Bowen v. Yuckert,

482 U.S. 137, 145 (1987) and 20 C.F.R. § 416.920(c). “Basic work activities” refers to “the

abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 416.921(b). “An impairment or

combination of impairments can be found ‘not severe’ only if the evidence establishes a slight

abnormality that has ‘no more than a minimal effect on an individual’s ability to work.’” Smolen

v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (quoting Social Security Ruling (SSR) 85-28).

“[T]he step two inquiry is a de minimis screening device to dispose of groundless claims.” Id.

(citing Bowen, 482 U.S. at 153-54). An ALJ is also required to consider the “combined effect”

of an individual’s impairments in considering severity. Id.

In this case, the ALJ found only plaintiff’s physical residuals from a right cerbrovascular

accident/lacunar stroke with left hemiparesis severe. Plaintiff argues that the ALJ should have also

found her blood disorder and cognitive residual impairments severe, and asserts that those

impairments directly affected her ability to perform her past work.

A. Blood Disorder

The blood disorder refers to plaintiff’s clotting abnormality, due to Leiden factor V

deficiency. She asserts that this condition required her to stand and move around sooner than

every two hours in order to prevent blood clotting and another stroke (AR 333, 537), that she had

to rest for thirty minutes after sitting for two hours (AR 114), that she was unable to take hormone

replacements, resulting in her inability to sleep well at night (AR 105, 133, 135), and that she was

fatigued and napped daily for about two hours (see, e.g., AR 100, 445, 485, 521.)

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The Commissioner asserts that the evidence as a whole indicates that medication controlled

plaintiff’s blood clotting and that this impairment did not significantly limit her ability to work.

For example, although plaintiff told Dr. Anita Peterson on November 21, 2001 that she had to

stand and move around every two hours to avoid a blood clot, Dr. Eileen Johnston, on November

16, 2001, found that plaintiff had “no recurrent thromboembolic disease on therapeutic doses of

Coumadin for her factor V Leiden.” (AR 329, 333.) ( See also AR 468 (Dr. William Likosky

stated in a May 2002 report that plaintiff was “being managed” for her Leiden deficiency and that

“[t]he clinical manifestations of [her] stroke have waned to virtually nothing.”) and AR 371 (Dr.

David A. White, in a June 2003 report, found plaintiff had “[c]hronic anti-coagulation need[,] but

stated that she “has really done quite well with anti-coagulation[.]”)) The Commissioner also, like

the ALJ, takes notice that jobs such as plaintiff’s past work usually provide for breaks at two-hour

intervals. See Social Security Ruling (SSR) 96-9p (“In order to perform a full range of sedentary

work, an individual must be able to remain in a seated position for approximately 6 hours of an

8-hour workday, with a morning break, a lunch period, and an afternoon break at approximately

2-hour intervals.”) and (AR 22 (noting “most jobs allow a break every two hours” and stating that

plaintiff’s need to move every two hours would not interfere with her past work) (citing Social

Security Program Operations Manual System (POMS) DI 25020.010 B 2 (mental abilities required

for any job include: “The ability to maintain concentration and attention for extended periods (the

approximately 2-hour segments between arrival and first break, lunch, second break, and

departure).”))

Plaintiff responds that the ALJ was not qualified as a vocational expert to make the

determination regarding two-hour breaks, and points to her testimony that her former job required

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her to sit for approximately seven out of eight hours (AR 535), and her statement on a

questionnaire that she spent at least thirty minutes resting after sitting or standing for two hours

(AR 114). Plaintiff also objects to the Commissioner’s argument that her coagulation limitation

is controlled through medication as an improper post hoc rationalization. See Connett v.

Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (court erred in relying on evidence the ALJ did not

discuss).

Significantly, plaintiff points to no evidence from a physician or other medical professional

supporting her asserted need to move approximately every two hours. Instead, she relies on

evidence either reflecting her self-report or taking the form of witness statements. As discussed

below, however, the ALJ’s decision to find plaintiff and her witnesses not entirely credible is

supported by substantial evidence. Moreover, the ALJ specifically accounted for plaintiff’s

asserted need to move every two hours at step four. (See AR 22.) Also, although plaintiff points

to evidence from her treating physician, Dr. Rayburn Lewis, supporting her claims regarding

fatigue and naps, the undersigned also below finds the ALJ’s decision to not give weight to Dr.

Lewis’s opinion supported by substantial evidence. Accordingly, plaintiff fails to demonstrate any

error with respect to her blood disorder at step two.

B. Cognitive Limitations

Plaintiff points to witness testimonials supporting her claim of cognitive limitations. (See,

e.g., AR 97, 101, 124, 139, 141.) She notes that memory testing by Dr. Peterson in November

2001 reflected she had difficulty understanding some instructions, had a slower learning curve than

would be expected in one aspect of the testing, that her recall was not as strong as her recognition,

and that Dr. Peterson expected “further improvement in cognitive functioning, post-CVA.” (AR

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334-35.) Also, although acknowledging that Dr. Peterson concluded she had no mental

impairment severely limiting her ability to work, plaintiff notes that Dr. Peterson did not

specifically opine that she could return to her job as a software technician and analyst. (AR 336.)

The Commissioner argues that the record contradicts plaintiff’s allegation of severe

cognitive deficits. She notes that, in May 2001, plaintiff reported to Dr. David Tempest that

“cognitively she is doing well . . . reading, doing finances, managing her affairs, parenting her 17-

year-old son[,]” and that Dr. Peterson found average and above average psychological test results

and no severe impairment. (AR 312 and 333-36.)

The ALJ addressed the question of cognitive limitations as follows:

I do not find that the claimant has a severe mental impairment. Testing has not

revealed any significant limitations. The claimant’s sister specifically stated that the

claimant had no mental problems when she completed a questionnaire concerning the

claimant a year after the claimant’s stroke. Two years later, she said that the

claimant’s condition had not changed, but reported numerous mental problems; this

inconsistency reflects on the credibility of the testimony offered. There is minimal

evidence of any mental problems in the record. The claimant has traveled with her

church choir, and she reports that she worked part time. Dr. Lewis has also stated

that the claimant’s condition is unchanged from 2002. In 2002, no one was reporting

any significant cognitive difficulties. Indeed, the claimant was able to function well

cognitively even during her hospitalization after the stroke. The claimant is able to

drive, shop, and cook. There is no objective evidence other than lay statements made

several years after the stroke, which indicate that the claimant had any mental

limitations. Doctors for the State Agency found no severe mental impairment (exhibit

12F). Dr. Peterson had the claimant complete memory testing and made no mental

diagnosis (exhibit 11F).

(AR 19.) The ALJ also rejected the opinion of Dr. Lewis that plaintiff was disabled, in part, due

to cognitive limitations, stating objective evidence in his records, the records from other

physicians, and plaintiff’s activities of daily living did not support his conclusion. (See AR 19 and

22 (stating, inter alia, that Dr. Likosky – a neurologist, as compared to Dr. Lewis’s internal

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medicine specialty – noted the “clinical manifestations of the claimant’s stroke had waned to

virtually nothing.”))

Critically, as noted by the ALJ and the Commissioner, Dr. Peterson found plaintiff average

to above average on testing and concluded “[n]o mental impairment severely limits her ability to

work.” (AR 335-36.) She also assessed plaintiff with a very high Global Assessment of

Functioning (GAF) score of 85. (AR 335.) Also, as discussed below, the ALJ appropriately

assessed the opinions of Dr. Lewis, plaintiff’s credibility, and the testimony proffered by her

witnesses. For these reasons, plaintiff also fails to demonstrate error at step two with respect to

her alleged cognitive limitations.

Physicians’ Opinions

In general, more weight should be given to the opinion of a treating physician than to a

non-treating physician, and more weight to the opinion of an examining physician than to a nonexamining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where not contradicted

by another physician, a treating or examining physician’s opinion may be rejected only for “‘clear

and convincing’” reasons. Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)).

Where contradicted, a treating or examining physician’s opinion may not be rejected without

“‘specific and legitimate reasons’ supported by substantial evidence in the record for so doing.”

Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Where the opinion

of the treating physician is contradicted, and the non-treating physician’s opinion is based on

independent clinical findings that differ from those of the treating physician, the opinion of the

non-treating physician may itself constitute substantial evidence. See Andrews v. Shalala, 53 F.3d

1035, 1041 (9th Cir. 1995). It is the sole province of the ALJ to resolve this conflict. Id. Also,

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the opinions of specialists are appropriately given more weight than non-specialists. See Smolen,

80 F.3d at 1285.

Plaintiff here contests the ALJ’s assessment of the opinions of her treating physician, Dr.

Lewis. The ALJ stated the following with respect to Dr. Lewis:

On August 28, 2002, Dr. Lewis stated that the claimant was, in his opinion, incapable

of full time duty, even at a light or sedentary status. He indicated that the claimant

was so limited due to fatigue and balance problems. He felt that this could improve

over time (exhibit 19F). This opinion has no proffered support on its face, and none

can be gleaned from Dr. Lewis’ records.

. . . 

In October 2004, Dr. Lewis wrote that the claimant had moderate residuals from a left

parietotemporal cerebrovascular accident including postural imbalance, fatigue,

cognitive deficits and depression with coagulopathy requiring anticoagulation,

osteoporosis and a history of a colon resection for diverticulosis as well as

hyperlipidemia. He said that her condition was stable and unchanged from 2002. He

said that she remained incapable of full time sedentary activity and that subtle

cognitive changes remained a substantive barrier to her returning to productive

activity (exhibit 21F). Objective evidence in Dr. Lewis’ records, again, provide no

support for this opinion. 

. . . 

Once again, I have considered the statement of Dr. Lewis that the claimant is limited

to part time work due to fatigue, cognitive problems, and balance problems, but I give

this opinion no weight. Dr. Lewis’ treatment notes do not show frequent reports of

these problems. Dr. Lewis is the claimant’s primary care physician, but he is only an

internal medicine specialist. The claimant has seen a number of specialists. Dr.

Likosky is a neurologist, and he noted that the clinical manifestations of the claimant’s

stroke had waned to virtually nothing. It is for this reason that he turned treatment

over to Dr. Lewis (Exhibit 18F, pp. 5-9). Dr. White, who is subcertified in

hematology noted that the claimant appeared well and bright, she moved comfortably

and her muscle strength was symmetric (Exhibit 16F, p. 3). Dr. Lewis’ notes, the

reports of Dr. White, Dr. Likosky, the claimant’s activities of daily living, and the

reviewing physicians for the State Agency all suggest that the claimant is not as

limited as Dr. Lewis has indicated in his letter.

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(AR 18-22.) (See also AR 19 (in finding plaintiff had no severe mental impairment, stating: “Dr.

Lewis has also stated that the claimant’s condition is unchanged from 2002. In 2002, no one was

reporting any significant cognitive difficulties. Indeed, the claimant was able to function well

cognitively even during her hospitalization after the stroke.”)) The ALJ also more specifically

addressed plaintiff’s activities of daily living in assessing her credibility and witness statements (AR

19-22).

Pointing to documents in the record, plaintiff disputes the ALJ’s assertion that Dr. Lewis’s

notes did not support his opinion regarding her inability to work. (See AR 363 (October 2001 note

that left-side ataxia worse with fatigue and difficulties stepping up on footstool with left foot); AR

360 (March 2002 note that he would help her reapply for disability benefits); AR 513 (September

2002 note that plaintiff “still requires naps”); AR 443 (November 2002 note that her left hand grip

was slightly weaker and she walked sparingly); AR 495 (June 2004 note that she had sleeping

difficulties)). She also points to symptoms recorded by other doctors. ( See AR 329 (Dr.

Johnston, in November 2001, noted that she had some residual weakness in her left lower

extremity and significant emotional impact in compromising her previously very active lifestyle);

AR 334-35 (Dr. Peterson, in November 2001, noted some difficulty in understanding instructions,

a slower learning curve than would be expected in one respect, and that her recall was weaker than

her recognition); AR 468 (Dr. Likosky, in May 2002, noted “a virtually trivial drift of the left

arm”); and AR 371 (Dr. White, in June 2003, noted fatigue in her muscle strength and that her left

leg was a bit weaker)). She also points to the supportive reports of her witnesses.

As found by the ALJ, Dr. Lewis’s notes do not provide sufficient support for his 2002 and

2004 conclusions regarding the degree of plaintiff’s limitations. Moreover, the reports from other

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doctors, including specialists, are not particularly helpful to plaintiff’s argument. The November

2001 report from Dr. Johnson is dated much closer in time to plaintiff’s April 2001 stroke than

are the later letters from Dr. Lewis. Dr. Peterson’s report, as indicated above, does not support

plaintiff’s claims. (See AR 333-36.) Nor is Dr. Likosky’s May 2002 note helpful, pointing to a

“virtually trivial” arm drift and stating that “[t]he clinical manifestations of [her] stroke [had]

waned to virtually nothing.” (AR 468.) Also, Dr. White’s report, although noting plaintiff’s

reports of fatigue, is generally quite positive, particularly with respect to her success with anticoagulation treatment. (See AR 371.) In addition, as noted by the ALJ, state agency reviewing

physicians in November 2001 found no severe mental impairment and in April 2002 limited her

to light work. (AR 337-56.) In sum, as indicated above, plaintiff does not demonstrate that the

ALJ erred in his consideration of the opinions of Dr. Lewis.

Credibility Assessment

Absent evidence of malingering, an ALJ must provide clear and convincing reasons to

reject a claimant’s testimony. See Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). See

also Thomas, 278 F.3d at 958-59. In finding a social security claimant’s testimony unreliable, an

ALJ must render a credibility determination with sufficiently specific findings, supported by

substantial evidence. “General findings are insufficient; rather, the ALJ must identify what

testimony is not credible and what evidence undermines the claimant’s complaints.” Lester, 81

F.3d at 834. “We require the ALJ to build an accurate and logical bridge from the evidence to her

conclusions so that we may afford the claimant meaningful review of the SSA’s ultimate findings.”

Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003). “In weighing a claimant’s credibility, the

ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between

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his testimony and his conduct, his daily activities, his work record, and testimony from physicians

and third parties concerning the nature, severity, and effect of the symptoms of which he

complains.” Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

In this case, the ALJ rendered the following credibility assessment:

As noted, I do not find the claimant or her laywitness [stet] to be completely credible.

The claimant left her work several months prior to her cerebrovascular accident.

After the stroke the claimant has remained active and involved. She does her own

cooking, cleaning, shopping and driving. She is able to sing choral music well enough

to be with a choir that has twice traveled out of state since her alleged onset. She is

involved in card games and a book club. A year after her stroke, her sister, who was

living with the claimant at the time, specifically stated that the claimant had no mental

impairment. At that time, her daughter felt any memory problems were minor. At the

hearing the claimant’s daughter mentioned a number of mental problems in terms of

memory and confusion, but memory testing revealed no significant impairments in

memory or concentration.

(AR 21.)

Plaintiff asserts that the ALJ failed to provide clear and convincing reasons for discrediting

her testimony. She notes that she had been laid off from her job six months prior to her stroke,

received a length of service retirement, and did not claim disability until after her stroke. She

further states that her attempt at working twenty hours a week at her church was unsuccessful.

With respect to her various activities, plaintiff points to evidence in the record supporting her

claim that they were sporadic, punctuated by periods of rest, and generally more difficult than they

were prior to her stroke. Also, although she traveled out of state twice since her stroke – once

to New Orleans for a family reunion and once to Los Angeles with her choir – she notes her

previously very active lifestyle, including things like bowling and sporting events. Plaintiff also

again points to evidence in the record supporting her claim of cognitive limitations.

While plaintiff does not lead as active a lifestyle as she did previous to her stroke, the ALJ

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did not err in pointing to her post-stroke activities as calling into question her assertion of

disability. Also, as stated above, the ALJ’s decision finding no severe cognitive limitations is

supported by substantial evidence. As such, the undersigned finds that the ALJ’s credibility

assessment withstands scrutiny.

Lay Witness Testimony

Lay witness testimony as to a claimant’s symptoms or how an impairment affects ability

to work is competent evidence. Van Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The

ALJ can reject the testimony of lay witnesses only upon giving reasons germane to each witness.

See Smolen, 80 F.3d at 1288-89 (finding rejection of testimony of family members because, inter

alia, they were “‘understandably advocates, and biased’” amounted to “wholesale dismissal of the

testimony of all the witnesses as a group and therefore [did] not qualify as a reason germane to

each individual who testified.”) (citing Dodrill, 12 F.3d at 918). Accord Lewis v. Apfel, 236 F.3d

503, 511 (9th Cir. 2001) (“[L]ay testimony as to a claimant’s symptoms is competent evidence

that an ALJ must take into account, unless he or she expressly determines to disregard such

testimony and gives reasons germane to each witness for doing so.”)

Plaintiff first asserts that the ALJ erred in failing to give any reasons for dismissing the

statement proffered by her pastor/former employer, Robert L. Manaway, Sr. (See AR 142-43.)

She asserts that this statement provided first hand observations of her difficulty in working only

twenty hours a week following her stroke.

In his letter, Manaway indicates that plaintiff spent the last two years working as the

secretary for his church and states in relevant part:

I affirm that Mary’s stroke greatly diminished her quality of life. Before Mary had the

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stroke she as [stet] a very successful single mother, and a happy carefree individual.

She spent the early years raising her son Joey. No one was as committed as Mary was

with the task of mothering.

Mary was also a member of our Gospel choir. She would rock and clap at the same

time back then. But after the stroke Mary was not able to be fully involved in many

choir activities.

About six month [stet] after the stroke Mary came to work with me in the front office.

It was here that I noticed her good and bad days. Some days her memory was sharp

and quick. But on other days she labored to get through everyday task. [stet] I can

tell you that being at the church and being responsible for important matters helped

her get through some very difficult times. It was in this atmosphere that I noticed the

greatest difference in her life.

(AR 142.)

Plaintiff next asserts that the ALJ did not consider the remaining witness information in the

context in which it was provided, that is, noting changes in her functioning since the stroke. See

generally Regennitter v. Commissioner of Social Sec. Admin., 80 F.3d 1273, 1289 (9th Cir. 1996)

(stating testimony from lay witnesses who see a plaintiff everyday is of particular value). Plaintiff

asserts that, although reciting the testimony of those witnesses in the decision, the ALJ did not

provide reasons germane to each witness. She also rejects the ALJ’s contention that these

statements conflicted with the medical evidence, asserting that they, instead, provide additional

clarification.

The Commissioner concedes the ALJ’s failure to specifically address Manaway’s letter,

but asserts that this omission was either acceptable entirely or at most harmless error. She cites

Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984), for the proposition that the ALJ need

not reject non-probative evidence. The Commissioner describes the statement as vague and of

questionable value, asserting that is unclear what Manaway meant by plaintiff’s “good and bad

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days” or how she “labored.” (AR 142.) With respect to the latter comment, the Commissioner

points to plaintiff’s testimony that she did not have any difficulty working the twenty hours a week

at the church because she “could get up and walk as often as [she] needed” and her failure to

mention having any cognitive difficulties. (AR 537.)

The Commissioner responds that the other lay witness statements were somewhat

inconsistent, noting plaintiff’s sister indicated both that plaintiff’s mental functioning was impaired

and unimpaired. (See AR 119-23 (stating in April 2002 that she had not recognized any mental

or emotional problems) and AR 141 (indicating in June 2004 problems in mental alertness, speech,

thought, and memory)). She further generally argues that the ALJ accurately concluded that the

tenor of these statements conflicted with the medical evidence.

The Commissioner’s reliance on Vincent is misplaced. As noted in Van Nguyen, the lay

witnesses in Vincent offered diagnoses, which was not considered competent evidence, whereas

lay testimony as to symptoms and how they affect an individual’s ability to work is competent

evidence. 100 F.3d at 1467. However, the undersigned agrees that the ALJ’s failure to specifically

address Manaway’s letter was harmless and that the ALJ provided sufficient reasons for finding

plaintiff’s witness statements not completely credible.

The ALJ described in detail both the medical record and statements from plaintiff’s sister,

daughter, and friend. (AR 17-19.) He then concluded that, in the face of the “objective testing

and objective medical opinion (as opposed to the likely accommodating nature of plaintiff’s

treating source opinions)[,]” he was “unable to accord significant probative weight to the

supportive statements of claimant’s lay witnesses.” (AR 19.) He thereafter cites an extensive

amount of case law to support his conclusion that “the lay testimony in this case cannot outweigh

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[his] analysis of the objective clinical and laboratory evidence, and medical opinion of record, and

of claimant’s own credibility.” (AR 19-21.) The ALJ added: “In other words, as the trier of fact

in this matter, I find that the subjective elements of proof offered in this case, even with lay

corroboration of activities and behavior, cannot carry claimant’s burden of proof on disability.”

(AR 21.)

Also, as reflected above, the ALJ proffered criticisms specific to the testimonials of

plaintiff’s sister and daughter. ( See AR 19 (“The claimant’s sister specifically stated that the

claimant had no mental problems when she completed a questionnaire concerning the claimant a

year after the claimant’s stroke. Two years later, she said that the claimant’s condition had not

changed, but reported numerous mental problems; this inconsistency reflects on the credibility of

the testimony offered.”) and AR 21 (“A year after her stroke, her sister, who was living with the

claimant at the time, specifically stated that the claimant had no mental impairment. At that time,

her daughter felt any memory problems were minor. At the hearing the claimant’s daughter

mentioned a number of mental problems in terms of memory and confusion, but memory testing

revealed no significant impairments in memory or concentration.”)) Although the ALJ did not

include any individual reasons for rejecting the questionnaire and letter from plaintiff’s friend, Rae

Richardson, he outlined the content of the letter and it is apparent from his decision that he

discounted the opinions contained therein as contrary to the medical evidence in the record. (See

AR 18-21, 96-100, and 144.)

It is also apparent that, although he failed to outline Manaway’s letter, the ALJ’s reasoning

for rejecting all of the witness statements was equally pertinent to the contents of that letter. That

is, in the face of the medical evidence of record, the lay testimony was not afforded significant

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probative weight. Therefore, the ALJ’s failure to specifically address Manaway’s letter was

harmless. For these reasons, the undersigned concludes that plaintiff fails to demonstrate

reversible error in the ALJ’s consideration of her lay witnesses.

Vocational Expert

Finally, plaintiff argues that the ALJ should have called a vocational expert to testify given

the limitations caused by her blood disorder – including her need to move around every two hours

and rest for thirty minutes after that movement, as well as her cognitive limitations. She cites

cases requiring the use of a vocational expert at step five where a claimant suffers from the nonexertional limitation of needing to alternate sitting and standing. Tackett v. Apfel, 180 F.3d 1094,

1103-04 (1999); DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). See also Burkhart v.

Bowen, 856 F.2d 1335, 1340-41 (9th Cir. 1988) (ALJ erred, after finding significant nonexertional limitations at step five, in that he “assumed the role of vocational expert himself[,]”

thereby basing speculations on information outside the record, depriving plaintiff of the

opportunity to cross-examine or rebut, and rendering a decision lacking evidentiary support). She

also asserts that the ALJ erred in assuming she could perform her complex previous work without

questioning a vocational expert as to the necessary cognitive requirements for that work. Plaintiff

further avers that the ALJ failed to consider or mention the testimony of her daughter, who had

direct knowledge given her position as a human resources manager for the same company, as to

the requirements of the job and the reasons why her mother could not perform the work, as well

as to her cognitive limitations generally. (See AR 544-49.)

The parties also, as explained above, dispute the propriety of the ALJ taking notice that

most jobs provide for breaks at two-hour intervals and his consequent conclusion that plaintiff’s

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need to move every two hours would not interfere with her ability to perform that work.

As noted by the Commissioner and reflected in the cases relied on by plaintiff, the

argument regarding plaintiff’s alleged nonexertional limitations applies only at step five. Here, the

ALJ concluded his decision at step four, where vocational expert testimony is discretionary. 20

C.F.R. § 404.1560(b)(2); Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). Additionally,

as noted above, the ALJ did take into consideration plaintiff’s alleged need to move every two

hours. (AR 22 (noting “most jobs allow a break every two hours” and stating that plaintiff’s need

to move every two hours would not interfere with her past work) (citing POMS DI 25020.010 B

2 (mental abilities required for any job include: “The ability to maintain concentration and attention

for extended periods (the approximately 2-hour segments between arrival and first break, lunch,

second break, and departure).”)) See also SSR 96-9p (describing “2-hour intervals” in a

workday.) The ALJ, therefore, did not err either in failing to call a vocational expert, or in taking

notice as to the typical provision of breaks at two-hour intervals. Also, because he otherwise

provided germane reasons for rejecting her testimony, the ALJ also did not err in not directly

addressing the testimony of plaintiff’s daughter as to plaintiff’s former job responsibilities.

CONCLUSION

For the reasons described above, this matter should be AFFIRMED. A proposed order

accompanies this Report and Recommendation. 

DATED this 25th day of April, 2006.

A

Mary Alice Theiler

United States Magistrate Judge

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