IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PEGGY J. CANTRELL, 6:14-CV-01122-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

KATHRYN TASSINARI

DREW L. JOHNSON

Harder, Wells, Baron & Manning, P.C.

474 Willamette

Suite 200

Eugene, OR 97401

(541) 686-1969

Attorneys for Plaintiff

BILLY J. WILLIAMS

Acting United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

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Case 6:14-cv-01122-BR Document 16 Filed 09/03/15 Page 1 of 17
DAVID MORADO

Regional Chief Counsel

KATHY REIF 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/A 221A

Seattle, WA 98104

(206) 615-2531

Attorneys for Defendant

BROWN, Judge.

Plaintiff Peggy J. Cantrell seeks judicial review of a final

decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff's application

for Disability Insurance Benefits (DIB) under Title II of the

Social Security Act. This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). 

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff filed an application for DIB on June 2, 2010,

alleging a disability onset date of December 31, 2005. 

Tr. 132.1

 Plaintiff later amended her onset date to September 1,

2009. Tr. 41. The application was denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held a

1

 Citations to the official transcript of record filed by

the Commissioner on November, 18, 2014, are referred to as "Tr."

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hearing on March 5, 2013. Tr. 34-72. At the hearing Plaintiff

was represented by an attorney. Plaintiff and a vocational

expert (VE) testified at the hearing. 

The ALJ issued a decision on April 12, 2013, in which she

found Plaintiff was disabled after January 24, 2012; i.e., the

ALJ concluded Plaintiff was not entitled to DIB during the closed

period of September 1, 2009, through January 24, 2012, but was

entitled to DIB after the closed period. Tr. 12-23. Pursuant to

20 C.F.R. § 404.984(d), that decision became the final decision

of the Commissioner when the Appeals Council denied Plaintiff's

request for review. Tr. 1-4. See Sims v. Apfel, 530 U.S. 103,

106-07 (2000). 

BACKGROUND

Plaintiff was born June 24, 1957, and was 55 years old at

the time of the hearing. Tr. 73. Plaintiff completed high

school. Tr. 40. Plaintiff has past relevant work experience as

a detailer, sandwich-maker, and fast-food manager. Tr. 21. 

Plaintiff alleges disability during the relevant period due

to chronic pain, degenerative joint disease of the knees, mild

degenerative joint disease of the left hip, mild lumbar

spondylosis, anxiety/panic disorder, and adjustment disorder with

depression. Tr. 14. 

Except when noted, Plaintiff does not challenge the ALJ’s

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summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

medical evidence. See Tr. 17-18, 20.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden, a claimant must demonstrate her

inability "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). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)). 

The district court must affirm the Commissioner's decision

if it is based on proper legal standards and the findings are

supported by substantial evidence in the record as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

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(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). "It is more than a mere scintilla [of

evidence] but less than a preponderance." Id. (citing Valentine,

574 F.3d at 690). 

The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006). 

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

2007). See also 20 C.F.R. § 404.1520. Each step is potentially

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dispositive. 

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 404.1520(a)(4)(I). See also Keyser v.

Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii). See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R. 

§ 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. The

criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments). 

If the Commissioner proceeds beyond Step Three, she must

assess the claimant’s residual functional capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite his limitations. 20 C.F.R.

§ 404.1520(e). See also Social Security Ruling (SSR) 96-8p. “A

'regular and continuing basis' means 8 hours a day, for 5 days a

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week, or an equivalent schedule." SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete

incapacity to be disabled. Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885

F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work she has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv). 

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 404.1520(a)(4)(v). See also

Keyser, 648 F.3d at 724-25. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 

The Commissioner may satisfy this burden through the testimony of

a VE or by reference to the Medical-Vocational Guidelines set

forth in the regulations at 20 C.F.R. part 404, subpart P,

appendix 2. If the Commissioner meets this burden, the claimant

is not disabled. 20 C.F.R. § 404.1520(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff had not engaged in

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substantial gainful activity after her September 1, 2009, alleged

onset date. Tr. 14.

At Step Two the ALJ found that during the relevant period

Plaintiff had the severe impairments of chronic pain,

degenerative joint disease of the knees, mild degenerative joint

disease of the left hip, mild lumbar spondylosis, anxiety/panic

disorder, and adjustment disorder with depression. Tr. 14. 

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments during the relevant period did not meet

or medically equal one of the listed impairments in 20 C.F.R.

part 404, subpart P, appendix 1. Tr. 1022. The ALJ found that

during the relevant period Plaintiff had the RFC to perform “less

than full range of light work.” Tr. 16. The ALJ found Plaintiff

could lift and carry ten pounds frequently and twenty pounds

occasionally, could stand and/or walk for four hours in an eighthour workday, and could sit for six hours in an eight-hour work

day. Tr. 16. The ALJ found Plaintiff could occasionally stoop

and climb stairs and ramps and should avoid kneeling; crouching;

crawling; concentrated exposure to extreme temperatures; and

climbing ladders, ropes, and scaffolds. Tr. 16. The ALJ also

found Plaintiff is able to understand, to remember, and to carry

out only simple instructions that can be learned in 30 days or

less; is able to perform low-stress jobs, which are jobs “with

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related decision-making”; and is able to have occasional public

contact. Tr. 16. The ALJ found, however, that Plaintiff should

not work directly with the public. Tr. 16. 

At Step Four the ALJ concluded Plaintiff could not perform

any past relevant work during the period at issue. Tr. 21. 

At Step Five the ALJ found Plaintiff could perform jobs that

exist in significant numbers in the national economy during the

relevant period. Tr. 21. Accordingly, the ALJ found Plaintiff

was not disabled during the relevant period.

DISCUSSION

Plaintiff contends the ALJ erred when she (1) improperly

rejected Plaintiff’s testimony; (2) improperly partially rejected

the statement of Plaintiff’s husband, Joseph Cantrell; 

(3) improperly gave “some weight” to the opinion of treating

physician Brian Jones, M.D.; and (4) erroneously found at Step

Five that Plaintiff could perform jobs that existed in

significant numbers in the national economy during the relevant

period.

I. The ALJ gave clear and convincing reasons for partially

rejecting Plaintiff’s testimony.

Plaintiff alleges the ALJ erred when she failed to give

clear and convincing reasons for partially rejecting Plaintiff's

testimony at the March 2013 hearing.

In Cotton v. Bowen the Ninth Circuit established two

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requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment

or combination of impairments could reasonably be expected to

produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th

Cir. 1986). The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity. 

Smolen, 80 F.3d at 1284.

If the claimant satisfies the above test and there is not

any affirmative evidence of malingering, the ALJ can reject the

claimant's pain testimony only if he provides clear and

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th

Cir. 1995)). General assertions that the claimant's testimony is

not credible are insufficient. Id. The ALJ must identify "what

testimony is not credible and what evidence undermines the

claimant's complaints." Id. (quoting Lester, 81 F.3d at 834).

At the March 2013 hearing Plaintiff testified she was not

able to work due to issues with “availability.” Tr. 43. 

Specifically, Plaintiff testified the pain in her knees flares up

unpredictably, which then “throws [her] into a panic.” Tr. 43. 

Plaintiff noted she was working on “getting set up with” a

counselor for her depression, but she believed it was her knee

pain and panic attacks that kept her from working. Tr. 43-44. 

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Plaintiff testified she was in chronic pain due to a baker’s cyst

behind her left knee and leg swelling. Plaintiff testified she

could walk 15 minutes before she needed to sit, could stand for

an hour before needing to sit, and could sit for half an hour

before needing to change positions. Tr. 46-47. Plaintiff noted

she and her husband own a farm and grow berries, beans, corn, and

other produce. Plaintiff, however, was no longer able to garden

or work at their farm stand, which is open from the end of May to

October 31 annually. Tr. 48. Plaintiff testified they had to

hire outside help to run the farm stand for the two summers

before the hearing in March 2013.

The ALJ found Plaintiff’s testimony “concerning the

intensity, persistence, and limiting effects of [her] alleged

symptoms are less than fully credible.” Tr. 19. The ALJ noted

in April 2011 Plaintiff’s examining psychologist, Alison

Prescott, Ph.D., reported Plaintiff drives, runs errands one to

two times per week, and “gets some exercise working outdoors on

[her] property.” Tr. 286. Plaintiff reported to Dr. Prescott

that she is “busy with the tasks of gardening and harvesting,”

she “is outside all day long in the summer,” and she “hosts

holiday dinners at her house.” Tr. 287. Dr. Prescott noted

Plaintiff “shows fairly good ADLs. She cooks, does household

chores, and runs errands. . . . She is very active with

gardening and running the produce stand.” Tr. 288.

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The ALJ also noted Plaintiff testified she will not need a

knee replacement for ten years. Tr. 56. Although Plaintiff

testified her legs swell up, the ALJ noted there is not any

report of that symptom in the record. Tr. 20. The ALJ noted

Plaintiff’s anxiety and depression were reported to be wellcontrolled with Paxil in 2009. Tr. 18. In addition, Plaintiff

had not undergone therapy for her psychological impairments and

did not appear to seek therapy until a few months before the

March 2013 hearing.

On this record the Court finds the ALJ provided clear and

convincing reasons supported by substantial evidence in the

record for finding Plaintiff's testimony was only partially

credible. The Court, therefore, concludes the ALJ did not err

when she rejected Plaintiff's testimony in part.

II. The ALJ did not err when she partially credited the laywitness statement.

Plaintiff asserts the ALJ erred when she only partially

credited the August 2010 Third Party Function Report of

Plaintiff’s husband, Joseph Cantrell.

Lay testimony regarding a claimant's symptoms is competent

evidence that the ALJ must consider unless he "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). See also Merrill ex rel. Merrill v. Apfel, 224

F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a

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claimant's disability, must give full consideration to the

testimony of friends and family members."). The ALJ's reasons

for rejecting lay-witness testimony must also be "specific." 

Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006). 

Joseph Cantrell stated in the August 2010 Report that

Plaintiff was in constant pain and could not stand for “long

periods.” Tr. 173. He stated when Plaintiff is having an

anxiety attack, “she becomes fearful of most anything” and she

suffers from “overwhelming fears.” Tr. 179. He noted Plaintiff

was able to perform her personal-care needs, to prepare meals

four times per week, to drive, to shop for food five times per

week, to pay bills, to use a checkbook, and to perform “all”

indoor and outdoor household chores “on a limited basis.” 

Tr. 175-76.

The ALJ found Joseph Cantrell’s observations reflected

Plaintiff engaged in a significant amount of activity, which is

consistent with the ALJ’s evaluation of Plaintiff’s RFC. In

addition, Joseph Cantrell’s opinion of Plaintiff’s impairments

relied at least in part on Plaintiff’s representations, which the

ALJ properly found were not fully credible.

The Court concludes on this record that the ALJ did not err 

when she gave only some weight to Joseph Cantrell’s statement

because the ALJ provided legally sufficient reasons for doing so.

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III. The ALJ did not err when she gave only “some weight” to the

opinion of Dr. Jones, treating physician.

On February 8, 2013, Dr. Jones completed a Physician’s

Assessment of Physical Capacities form in which she opined

Plaintiff could sit for eight hours in an eight-hour work day,

could stand for one hour in an eight-hour work day, could walk 15

minutes in an eight-hour work day, and needed to lie down two

hours in an eight-hour work day. Tr. 314. Dr. Jones noted

Plaintiff could lift up to ten pounds frequently and twenty

pounds occasionally and was not able to climb. Tr. 314. 

Dr. Jones stated Plaintiff “is in chronic pain and requests

chronic pain meds.” Id.

The ALJ gave Dr. Jones’s opinion only “some weight” because

it was issued after the date on which the ALJ had already found

Plaintiff to be disabled and there was not any indication that

Dr. Jones intended his opinion to reflect Plaintiff’s condition

during the relevant period. In addition, the ALJ noted DeWayde

Perry, examining physician, opined that during the relevant

period Plaintiff could stand and walk up to four hours in an

eight-hour work day, was not limited in sitting, and could carry

ten pounds frequently and twenty pounds occasionally. Tr. 280. 

Similarly, as noted, Dr. Prescott reported that during the

relevant period Plaintiff reported drives, runs errands one to

two times per week, and “gets some exercise working outdoors on

[her] property.” Tr. 286. Plaintiff reported to Dr. Prescott

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that during the relevant period she is “busy with the tasks of

gardening and harvesting,” she “is outside all day long in the

summer,” and she “hosts holiday dinners at her house.” Tr. 287. 

Dr. Prescott noted Plaintiff “shows fairly good ADLs. She cooks,

does household chores, and runs errands. . . . She is very

active with gardening and running the produce stand.” Tr. 288. 

On this record the Court concludes the ALJ did not err when

she gave only “some weight” to the opinion of Dr. Jones because

the ALJ supported her decision by reference to specific,

substantial evidence in the record.

IV. The ALJ did not err at Step Five.

Plaintiff asserts the ALJ erred at Step Five when she

inadequately addressed Plaintiff’s moderate difficulties in

concentration, persistence, and pace with a limitation to simple

instructions. As noted, the ALJ found that during the relevant

period Plaintiff was able to understand, to remember, and to

carry out only simple instructions that could be learned in 30

days or less; was able to perform low-stress jobs, which are jobs

“with occasional changes in the work setting and occasional work

related decision making; and was able to have occasional public

contact. Tr. 16. The ALJ also found that during the relevant

period Plaintiff should not work directly with the public. 

Tr. 16.

The Ninth Circuit has held moderate limitations in

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concentration, persistence, or pace are adequately reflected in a

restriction to simple work when a medical opinion has translated

that moderate restriction into a more specific functional

limitation. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th

Cir. 2008). See also Sabin v. Astrue, 337 F. App'x 617, 621 (9th

Cir. 2009)("[T]he end result of [Plaintiff's] moderate

difficulties as to [concentration, persistence, and pace] was

that she could do simple and repetitive tasks on a consistent

basis."). Here Dr. Prescott reported Plaintiff had “good

concentration,” “good short-term memory,” and “average

intellectual function.” Tr. 287. Dr. Prescott did not report

that Plaintiff had any problem with persistence or pace during

the examination. 

On this record the Court finds the ALJ did not err at Step

Five when she incorporated Plaintiff’s limitations in

concentration, persistence, and pace into limitations during the

relevant period to jobs in the national economy that require only

simple instructions that can be learned in 30 days or less, lowstress jobs, and jobs that require only occasional public contact

because the ALJ provided specific reasons supported by

substantial evidence in the record for doing so. 

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the 

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Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 3rd day of September, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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