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1 Defendant substituted pursuant to F.R.C.P. 25(d)(1) and 42 U.S.C. § 405(g). Linda S.

McMahon became Acting Commissioner of Social Security on January 20, 2007.

REPORT AND RECOMMENDATION

PAGE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

DARCY K. WATSON, )

)

Plaintiff, ) CASE NO. C06-514-JCC-MJB

)

v. ) REPORT AND 

) RECOMMENDATION

LINDA S. MCMAHON,1 )

Commissioner of Social Security, )

)

Defendant. )

_________________________________ )

The plaintiff Darcy K. Watson appeals to the District Court from a final decision

of the Commissioner of the Social Security Administration (the “Commissioner”)

denying her application for Supplemental Security Income under Title XVI of the Social

Security Act. For the reasons set forth below, it is recommended that the Court

AFFIRM the Commissioner’s decision for further proceedings.

I. PROCEDURAL HISTORY

The plaintiff applied for Supplemental Security Income (“SSI”) on May 30, 2003

(Tr. 30), alleging disability since December 21, 2002 (Tr. 74), and identifying her

impairments as arthritis and an abnormal curvature of the spine. Tr. 33. The Social

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REPORT AND RECOMMENDATION

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Security Administration denied the plaintiff’s application initially (Tr. 33) and upon

reconsideration. Tr. 38. A hearing was held before Administrative Law Judge (“ALJ”)

Marguerite Schellentrager, on March 30, 2005. Tr. 273. The plaintiff, who was

represented by counsel, testified at the hearing. Tr. 273. Vocational Expert, Michael

Swanson, also appeared and testified at the hearing. Tr. 300. The ALJ issued an

unfavorable decision on July 12, 2005, finding that the plaintiff is not disabled within

the meaning of the Social Security Act. Tr. 16. On February 11, 2006, the Appeals

Council denied the plaintiff’s request for review, making the ALJ’s decision the final

decision of the Commissioner. Tr. 5. The plaintiff timely filed her appeal with this

Court.

II. THE PARTIES’ POSITIONS

The plaintiff requests that the Court reverse the Commissioner’s decision and

remand for further administrative proceedings. Dkt. # 11 at 22. The plaintiff argues

that the ALJ erred in evaluating the plaintiff’s impairments at step two by rejecting the

plaintiff’s alleged conditions of fibromyalgia, degenerative disorder of the back and

neck and sleep apnea as not severe. Id. at 10. Secondly, the plaintiff alleges that the

ALJ erred in rejecting the plaintiff’s credibility. Id. at 19. Defendant responds that the

Commissioner’s decision should be affirmed because the ALJ applied the correct legal

standards and supported her decision with substantial evidence. Dkt. # 12 at 9.

III. STANDARD OF REVIEW

The court may set aside the Commissioner’s denial of social security disability

benefits when the ALJ’s findings are based on legal error or not supported by

substantial evidence in the record as a whole. Penny v. Sullivan, 2 F.3d 953, 956 (9th

Cir. 1993). Substantial evidence is defined as more than a mere scintilla but less than a

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REPORT AND RECOMMENDATION

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preponderance; it is 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). The ALJ is responsible for determining credibility, resolving conflicts in

medical testimony, and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,

1039 (9th Cir. 1995). Where the evidence is susceptible to more than one rational

interpretation, it is the Commissioner’s conclusion which must be upheld. Sample v.

Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

IV. EVALUATING DISABILITY

The claimant bears the burden of proving that he is disabled. Meanel v. Apfel,

172 F.3d 1111, 1113 (9th Cir. 1999). Disability is defined as the inability to engage in

any substantial gainful activity by reason of any medically determinable physical or

mental impairment, which can be expected to result in death, or which has lasted or can

be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §

423 (d)(1)(A).

The Social Security regulations set out a five-step sequential evaluation process

for determining whether a claimant is disabled within the meaning of the Social

Security Act. See 20 C.F.R. § 416.920. At step one, the claimant must establish that he

or she is not engaging in any substantial gainful activity. 20 C.F.R. §§ 404.1520(b),

416.920(b). At step two, the claimant must establish that he or she has one or more

medically severe impairments or combination of impairments. If the claimant does not

have a “severe” impairment, he or she is not disabled. Id. at § (c). At step three, the

Commissioner will determine whether the claimant’s impairment meets or equals any of

the listed impairments described in the regulations. A claimant who meets one of the

listings is disabled. See Id. at § (d).

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REPORT AND RECOMMENDATION

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At step four, if the claimant’s impairment neither meets nor equals one of the

impairments listed in the regulations, the Commissioner evaluates the claimant’s

residual functional capacity and the physical and mental demands of the claimant’s past

relevant work. Id. at § (e). If the claimant is not able to perform his or her past relevant

work, the burden shifts to the Commissioner at step five to show that the claimant can

perform some other work that exists in significant numbers in the national economy,

taking into consideration the claimant’s residual functional capacity, age, education, and

work experience. Id. at § (f); Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If

the Commissioner finds the claimant is unable to perform other work, then the claimant

is found disabled.

V. SUMMARY OF THE RECORD EVIDENCE

The plaintiff, who was born in October of 1951, was 53 years old at the time of

the hearing before the ALJ. Tr. 30, Tr. 276. She has an eleventh grade education (Tr.

276), and she previously worked as a collection clerk, customer service representative,

cashier, and telemarketer. Id. In her disability report, the plaintiff indicated that her

condition limits her ability to work because she is “in pain all the time,” cannot

concentrate on her occupational duties and is falling asleep “(dozing) all of the time.”

Tr. 108. Other evidence relevant to the plaintiff’s claim is incorporated into the

discussion below.

VI. THE ALJ’S DECISION

The ALJ found that the plaintiff has not engaged in substantial gainful activity

since the alleged onset of her disability. Tr. 27. She determined that the plaintiff has

the following severe impairments: venous stasis, nerve entrapment of the left arm, and

obesity. Id. However, the ALJ found that these medically determinable impairments do

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REPORT AND RECOMMENDATION

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not meet or equal one of the listed impairments in Appendix 1, Subpart P of the

Regulations. Id. 

The ALJ concluded that the plaintiff has the residual functional capacity

(“RFC”) to lift up to ten pounds with limits on gross motor function of the nondominant left hand and arm to a maximum of one third of an eight-hour workday. Id. 

The ALJ thus concluded that the plaintiff was able to engage in her past relevant work

as a customer service representative, telemarketer, and a collection clerk as these

positions did not require the performance of work-related activities precluded by her

residual functional capacity. Id. In reaching this decision, the ALJ found that the

plaintiff’s allegations regarding her limitations are not totally credible and concluded

that the plaintiff’s impairments were not severe enough to preclude her from engaging

in her past relevant work. The ALJ ended her analysis at step four of the sequential

evaluation process. Id.

VII. DISCUSSION

A. ALJ’s Step Two Analysis

The plaintiff argues that the ALJ erred at step two by finding the plaintiff’s

conditions of fibromyalgia, degenerative disorder of the back and neck, and sleep apnea

not medically determinable due to a lack of objective medical evidence in the record.

Dkt. # 11 at 10. In order to be considered a severe impairment and satisfy step two, the

condition must first be “medically determinable,” that is, resulting from anatomical,

physiological, or physiological abnormalities that can be shown by medically

acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. §§ 404.1529(b),

416.929(b). Under no circumstances may the existence of an impairment be established

on the basis of symptoms alone; no symptom or combination of symptoms by itself can

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REPORT AND RECOMMENDATION

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constitute a medically determinable impairment. 20 C.F.R. §§ 404.1529(b),

416.929(b); SSR 96-4p.

In the plaintiff’s case, upon concluding that the record contained no objective

medical evidence of the three above-mentioned conditions, the ALJ terminated the

analysis. Tr. 23. The plaintiff argues that in finding the conditions of fibromyalgia,

degenerative disorder and sleep apnea not medically determinable, the ALJ failed to

execute her duty of fully developing the record to explore all of the relevant facts as to

the existence and severity of these ailments. Dkt. # at 14. 

Contrary to the plaintiff’s argument, the ALJ did not violate her duty to fully

develop the record because (1) the plaintiff ultimately bears the burden of proving her

disability and (2) the evidence in the record was not ambiguous so as to trigger the

ALJ’s duty to further supplement the record.

1. Plaintiff’s Burden of Proving Disability

The plaintiff fails to carry her burden of establishing her conditions of

fibromyalgia, degenerative disorder of the back and neck, and sleep apnea as “medically

determinable” impairments under the step two standard. It is a well-established

principle that the plaintiff ultimately bears the burden of establishing disability in step

two of the sequential evaluation. See Bowen v. Yuckert, 482 U.S. 137, 146, 107 S. Ct.

2287 (1987) ( “The Secretary . . . has express statutory authority to place the burden of

showing a medically determinable impairment on the claimant.”) (internal citation and

quotation marks omitted). Furthermore, the Social Security Act explicitly states that

“[a]n individual shall not be considered to be under a disability unless he furnishes such

medical and other evidence of the existence thereof as the Secretary may require.” 42

U.S.C. § 423(d)(5)(A); see also Mathews v. Eldridge, 424 U.S. 319, 336, 96 S.Ct. 893,

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REPORT AND RECOMMENDATION

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903 (U.S.Va. 1976) (“It is not unreasonable to require the claimant, who is in a better

position to provide information about his own medical condition, to do so.”) (internal

citation and quotation marks omitted).

 At title 42 U.S.C. § 423(d)(5)(A), it states that the plaintiff is under a duty to

“furnish such medical and other evidence” of her alleged disability to the Secretary. 

Here, the following objective medical evidence was left incomplete: tests for

fibromyalgia, medical imaging for her alleged degenerative disorder, and a sleep study

for her alleged sleep apnea. 

2. ALJ’s Duty to Develop the Record 

The plaintiff alleges that despite the plaintiff’s ultimate duty to prove disability,

the ALJ also holds a duty to the plaintiff to “fully and fairly develop the record.” 

Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996). An “ALJ’s duty to supplement a

claimant’s record is triggered by only ambiguous evidence. Webb v. Barnhart, 433

F.3d 683, 687 ( 9th Cir. 2005). 

In this case, while the ALJ did not make a specific finding that the evidence was

ambiguous, she did lack sufficient evidence to make the determination that the

conditions were severe at step two. Moreover, the expert testimony she relied upon did

not create any ambiguity. The case law in this area is developed and where the medical

expert opines that the tests produce “confusing” results, there is ambiguity. Tonapetyan

v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). See also Webb, 433 F.3d at 687

(medical evidence found ambiguous because “of the obvious vicissitudes in Webb’s

health, particularly the ways in which his conditions improved and worsened as a result

of the afflictions and their treatments.”) (internal citations and quotation marks

omitted). 

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 First, regarding fibromyalgia, consultative physician Dr. Maleque did not give a

definitive diagnosis of the disease but merely opined that the condition was “possible.” 

Tr. 194. Furthermore, Dr. Maleque did not finish the subjective pain test on the

plaintiff, stopping after the plaintiff tested positive for eight out of ten tender points

(Id.), when the full test calls for eleven out of eighteen tender points to show the

existence of the condition. See Sarchet v. Chater, 78 F.3d 305, 306-307 (7th Cir. 1996)

(“rule of thumb . . . that the patient must have at least 11 [of the 18 points positive] . . .

to be diagnosed”). Similarly, concerning the degenerative disorder and sleep apnea, the

plaintiff failed to produce medical imaging to show the existence of the degenerative

disease (Tr. 194), and failed to undergo a study to identify the existence of sleep apnea. 

Tr. 283. This is the plaintiff’s failure to present definitive diagnoses and not the duty of

the ALJ. 

B. Credibility of Plaintiff

The plaintiff asserts that the ALJ erred in finding the plaintiff not totally credible

in her allegations regarding her work limitations. Dkt. # 11 at 20. The plaintiff alleges

that this conclusion was improperly based on a determination of non severity of her

conditions and isolated incidents in the record which do not refute her credibility. Id. 

The general rule for assessing a claimant’s credibility requires that if a claimant

has established an underlying impairment which reasonably could be expected to

produce the alleged subjective complaints and there is no evidence of malingering, the

ALJ must provide clear and convincing reasons for rejecting the claimant’s testimony. 

See Smolen, 80 F.3d at 1281. To find the plaintiff not credible by clear and convincing

evidence standard, the ALJ must identify what testimony is not credible and what

evidence undermines the claimant’s complaints. Dodrill v. Shalala, 12 F.3d 915, 918

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(9th Cir. 1993). In assessing credibility, the ALJ may consider, for example; 1)

ordinary techniques of credibility evaluations, such as the claimant’s reputation for

lying and prior inconsistent statements concerning the symptoms; 2) unexplained or

inadequately explained failure to seek treatment or to follow a prescribed course of

treatment; 3) the claimant’s daily activities; and 4) medical evidence tending to discount

the severity of subjective claims. Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir.

2001). From the Court’s reading of the record, the ALJ produced precisely the kind of

clear and specific evidence from the record to support her credibility finding. 

The ALJ first noted the plaintiff’s inconsistency in the testimony when she said 

that she left her customer service job to care for her mother who had cancer. Tr. 279. 

The plaintiff also claimed to be unable to walk very long (Tr. 295), yet she walked to

her clinic to obtain a medical note. Tr. 244. Despite testifying that she constantly feels

pain throughout her body, specifically from remaining in one position for prolonged

periods of time (Tr. 290), which then required her to move around (Id., Tr. 285), she

took a significant car trip from Seattle to Bellingham and Anacortes every other week to

visit her sons. Tr. 296. Finally, the plaintiff had reported to her treating physician that

she had been working for her neighbor and had applied to the state for a permanent

position as her neighbor’s caretaker. Tr. 235. The ALJ’s credibility finding based on

the record satisfies the test in Rollins.

The Commissioner’s argument is convincing where the record shows instances

in which the plaintiff failed to follow through with treatment or prescribed treatment. 

Although the plaintiff’s treating physician recommended that she attempt weight loss

and quit smoking, the plaintiff made weak attempts at either stating that she continued

to smoke (Tr. 292), and could not lose weight because of her condition. Tr. 290. The

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ALJ also states that because the plaintiff failed to follow through with work retraining

classes due to a non-disability related reason, this demonstrates her physical and mental

capability of training for such light and sedentary work. Tr. 163-70.

The plaintiff argues Webb to show she tried to secure work and engaged in

household chores and that her actions should not be used to discredit her disability

allegations. Dkt. # 11 at 20. The court in Webb considered the fact that the claimant

sought employment merely to suggest that “he was doing his utmost in spite of his

health, to support himself,” and his daily activities as shopping and driving a car, “[do]

not in any way detract from his credibility as to his overall disability.” 433 F.3d at 688. 

However, Webb can be distinguished because of the plaintiff’s inconsistencies. 

Finally, the plaintiff’s complaints regarding her totally inability to work are not

wholly consistent with her physicians’ diagnoses. The plaintiff alleges that she is

unable to work due to pain “all of the time” (Tr. 92), and cannot concentrate on her

duties because she keeps falling asleep. Tr. 279. Dr. Maleque opined that the plaintiff

could be expected to stand and walk six hours in an eight-hour day with limitations on

her hip range of motion and fatigue, could sit without restrictions, and lift or carry

twenty pounds occasionally and ten pounds frequently. Tr. 194. This opinion in not

consistent with the plaintiff’s allegations that she is unable to work. The ALJ correctly

noted in her opinion such inconsistencies with clear and convincing evidence. Tr. 25.

In citing medical evidence which tended to discount the severity of the plaintiff’s

condition, the ALJ accorded “little weight” to both nurse practitioner Gooding and

treating physician Dr. Bays. Tr. 25-26. Even though deference is given to the opinion

of treating physicians, the Commissioner properly argues that the ALJ “is not bound by

the uncontroverted opinions of claimant’s physicians on the ultimate issue of disability 

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. . . [however] he cannot reject them without presenting clear and convincing reasons

for doing so.” Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993).

In this case the ALJ presented clear and convincing reasons for according both

the nurse and the treating physician’s opinions little weight. Gooding’s was “not

consistent with the objective medical evidence, nor even the claimant’s own reports. Id.

The ALJ appears to have clearly recognized that “despite claimant’s severe limitations

she reported that she was applying to the state to be paid for taking care of her

neighbor.” Tr. 25. Dr. Bays’ opinion of disability is afforded “little weight” because

Dr. Bays “based her opinion on unsubstantiated diagnoses and failed to explain the

specific reasons supporting her speculated limitations.” Id. Furthermore, the ALJ

recognized that Dr. Bays’ assessment of the plaintiff’s functional capacity was not at

odds with the other physicians who found the plaintiff able to do light work. Dr. Bays

wrote that the plaintiff’s current limitations are “walking for far distances (greater that

2-3 blocks), driving . . . lifting, pulling or pushing anything greater than ten pounds.” 

Tr. 258. These specific reasons taken from the record together with the fact that other

examiners found the plaintiff able to engage in light work, satisfies the clear and

convincing standard for rejecting treating physicians’ conclusions. 

//

//

//

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VIII. CONCLUSION

The Commissioner’s determination to deny the plaintiff Social Security Income

benefits is supported by substantial evidence and is free of legal error. Based on the

record evidence, the undersigned recommends that the Commissioner’s decision be

AFFIRMED. A proposed Order accompanies this Report and Recommendation.

DATED this 2nd day of February, 2007.

AMONICA J. BENTON

United States Magistrate Judge

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