IN THE UNITED ST ATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

RACHEL EILEEN STOUT, ) 

) 

Plaintiff, ) 

) 

v. ) 

) 

CAROLYN W. COL VIN, Acting Commissioner of) 

Social Security, ) 

) 

Defendant. ) 

JONES, J., 

3:14-CV-01697-JO 

OPINION AND ORDER 

Plaintiff Rachel Stout appeals the Commissioner's decision denying her application for 

disability insurance benefits and supplemental security income under Titles II and XVI of the Social 

Security Act. The court has jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the Commissioner's 

decision. 

PRIOR PROCEEDINGS 

Stout filed concu1Tent applications under Title II and Title XVI, alleging disability beginning 

in November 2008, due to back problems. Admin. R. 34, 216. The ALJ applied the five-step 

analysis outlined in the regulations to determine whether Stout was disabled. Admin. R. 36-41. The 

ALJ found that Stout's ability to work was adversely affected by degenerative disk disease, spinal 

stenosis, and obesity. Admin. R. 36. The ALJ determined that, despite these impairments, Stout 

retained the residual functional capacity ("RFC") to perfo1m a range oflight work, with limitations 

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on how long she could be required to stand, walk, sit, climb, and engage in postural activities such 

as balancing, stooping, kneeling, crouching, and crawling. The ALJ found that Stout also required 

a work environment where she would not be exposed to hazards such as unprotected heights or 

dangerous machine1y. Admin. R. 37. The vocational expert ("VE") testified that a person with 

Stout's RFC could perform the requirements oflight, unskilled occupations such as small products 

assembler and cashier, representing several hundred thousand jobs in the national economy. Admin. 

R. 40, 97. Accordingly, the ALJ concluded that Stout was not disabled. Admin. R. 41. 

STANDARD OF REVIEW 

The district court must affitm the Commissioner's decision if it is based on proper legal 

standards and the findings of fact are supported by substantial evidence in the record as a whole. 42 

U.S.C. § 405(g); Batsonv. Comm 'ro/Soc. Sec. Admin., 359 F.3d 1190, 1193 (9'h Cir. 2004). Under 

this standard, the Commissioner's factual findings must be upheld if supported by inferences 

reasonably drawn from the record even if evidence exists to support another rational interpretation. 

Batson, 359 F.3d at 1193; Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9'h Cir. 1995). 

DISCUSSION 

I. Claims of Error 

Stout contends the ALJ failed to accurately assess her RFC because she did not fully credit 

Stout's subjective statements about the severity of her limitations, discounted the statements of her 

friend, Kimberly Darby, and failed to fully develop the record. Stout contends these e11'ors led the 

ALJ to elicit testimony from the VE with hypothetical assumptions that did not accurately reflect her 

limitations. As a consequence, Stout contends, the ALJ's conclusion that she could perfo1m the 

occupations identified by the VE was not supported by substantial evidence. 

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II. Credibility Determination 

In her application papers, Stout alleged that she had constant pain in her back, legs, and hips. 

Her pain was so intense that it made concentration difficult, caused her leg to "not work," and left 

her unable to carry anything for fear of dropping it. In addition, sitting for a maximum of ten 

minutes was so painful it could cause her eyes to water. Admin. R. 23 8. At the hearing, Stout 

testified that her back pain was constant and made it difficult for her to walk or do anything. Admin. 

R. 75. Stout claimed that she had to wiggle around to get out of bed, and when she tried to do 

anything "the next thing I know, I am down for three days ... I can't get out of bed .... " Admin. 

R. 76. 

The ALJ found that Stout had medically determinable impairments that could reasonably be 

expected to produce back pain. Admin. R. 36-37. Futthermore, as reflected in the RFC assessment, 

the ALJ believed that Stout's back pain significantly limited her ability to perform basic work 

activities such as sitting, standing, walking, climbing, kneeling, stooping, and so fotth. Admin. R. 

3 7. The ALJ narrowed Stout's RFC by significantly limiting the amount of time she could be 

expected to engage in each of these activities. The ALJ also accepted Stout's claim that her back 

pain was vety distracting and made concentration difficult and she limited Stout's RFC accordingly 

to simple, repetitive work typical of unskilled occupations. Admin. R. 39. 

Because the ALJ found that Stout had medically determinable impaitments that could 

reasonably be expected to produce some degree of pain and did not identify affitmative evidence of 

malingering, the ALJ was required to assess the credibility of Stout's statements about the intensity, 

persistence, and limiting effects of her impaitments. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 

(9'h Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1282 (9'h Cir. 1996). 

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The ALJ found less than fully credible Stout's claims that her pain was so intense and 

persistent that she could not sit more than ten minutes, that she could not walk or do anything, that 

she would be down for three days if she tried to do anything, and that she could not do any work, 

even within the limitations of her RFC assessment. Admin. R. 37-39. An adverse credibility 

determination must include specific findings supported by substantial evidence and a clear and 

convincing explanation of the rationale. Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 1155, 

1160 (9th Cir. 2008); Smolen v. Chafer, 80 F.3d 1273, 1281-82 (9th Cir. 1996). The findings must 

be sufficiently specific to permit the reviewing comi to conclude that the ALJ did not arbitrarily 

discredit the claimant's testimony. Tommasetti v. As/rue, 533 F.3d 1035, 1039 (9th Cir. 2008). 

In assessing credibility, an ALJ must consider all the evidence in the case record, including 

the objective medical evidence, the claimant's treatment history, medical opinions, daily activities, 

work history, the observations of third paiiies with knowledge of the claimant's functional 

limitations, and any other evidence that bears on the consistency and veracity of the claimant's 

statements. Tommasetti, 533 F3d at 1039; Smolen, 80 F3d at 1284; SSR 96-7p, 1996 WL 374186, 

at *5. 

The ALJ' s decision demonstrates that she considered all the evidence relating to the proper 

factors for evaluating Stout's credibility. She found that the objective medical evidence did not 

suggest the extreme limitations Stout claimed. Admin. R. 38-39. For example, the diagnostic 

imaging from August 2007, when Stout was fully functional and working, showed that she had 

degenerative disk disease with canal and fonninal stenosis. Notably, Stout continued to work despite 

her medical condition through November 2008. Admin. R. 222, 278-279. At her latest MRI in 

October 2012, her condition had only "mildly worsened" since the 2007 MRI. Admin. R. 361. It 

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would be reasonable to expect that a drastic deterioration from being fully functional and employed 

in 2007 to being fully debilitated the next year would be reflected by more than mild worsening in 

the diagnostic imaging. 

Similarly, the clinical findings from physical examinations did not reflect a precipitous 

decline in Stout's functioning. In November 2007, before the alleged onset of disability, Stout was 

seeing Edward Lairson, M.D., for chronic back pain management. Dr. Lairson obtained generally 

nonnal findings on physical examination with full motor strength, generally good range of motion 

in the spine and hips, a negative FABER test for pathology in the hip and sacroiliac joints, minimal 

tenderness to palpation, and negative straight leg raise tests for radiculopathy. Admin. R. 310. In 

June 2010, clinical findings showed that Stout had nonnal muscle tone, strength, gait, and a negative 

straight leg raise. Admin. R. 34 7. In October 2012, Stout continued to demonstrate nonnal muscle 

tone, strength, reflexes, and gait and she continued to have negative straight leg raise tests for 

radiculopathy. Admin. R. 361. The clinical evidence did not include signs of atrophy or weakness 

that would reasonably be expected if Stout was confined to her bed for several days eve1y time she 

tried any activity. When the objective medical evidence conflicts with a claimant's subjective 

complaints, it suppo1is an adverse inference that can undennine the claimant's credibility. i\Iorgan 

v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9'h Cir. 1999). 

The ALJ found that Stout's treatment history did not suggest the extreme limitations she 

claimed. From June 2007 through October 2012, Stout has opted for only conservative treatment 

with pain medications and infrequent epidural steroidal injections. Admin. R. 360. She did not seek 

any change in treatment at the time she allegedly became disabled in November 2008. Admin. R. 

310, 360, 376, 379, 388. When a claimant alleges debilitating pain but opts for only conservative 

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Case 3:14-cv-01697-JO Document 18 Filed 10/22/15 Page 5 of 11
treatment, it supports an adverse inference as to the claimants statements about the severity or 

intensity of the symptoms. Parra v. Astrue, 481 F.3d 742, 750-51 (9'h Cir. 2007). 

In addition, conservative treatment with medications suggests that the medications are 

effective. Indeed, Stout's treatment notes indicate that her pain "seems to be controlled" with 

medications. Admin. R. 384. Impairments that are effectively controlled by medication are not 

disabling. Warre v. Comm'r a/Soc. Sec. Admin., 439 F.3d 1001, 1006 (9'h Cir. 2006). 

The ALJ also considered Stout's daily activities, and determined that they suggested she was 

not as limited as she claimed. Admin R. 39. In her function report, Stout reported a fairly broad 

range of activity, including grooming, cooking, running enands, driving a car, paying bills, using 

a check book, and crocheting. Admin. R. 240-242. While these activities are not equivalent to full 

time work, they are inconsistent with the extreme limitations Stout alleged in her testimony. In light 

of the treatment notes and objective medical evidence, it was reasonable for the ALJ to conclude that 

Stout's activities of daily living were not consistent with the degree of symptoms alleged. 

The ALJ's findings are supp01ied by substantial evidence in the record and are sufficiently 

specific for me to conclude that the ALJ did not arbitrarily reject Stout's subjective statements. Her 

reasoning is clear and convincing and the credibility determination will not be disturbed. 

Tommasetti, 533 F.3d at 1039; Carmickle, 533 F.3d at 1160. 

III. Lay Witness Statement 

Stout contends the ALJ improperly discounted the statements given by her friend Kimberly 

Darby in a written third patiy function report submitted in support of Stout's application. Darby said 

that Stout could independently perform a wide range of activities, including personal care and 

grooming, light housework, preparation of simple meals, driving a car, shopping, and painting and 

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Case 3:14-cv-01697-JO Document 18 Filed 10/22/15 Page 6 of 11
sewing. Admin. R. 38, 246-50. Darby said Stout could engage in these activities for only a limited 

amount of time. She said Stout could not sit, stand or walk for extended periods and "is in so much 

pain that she ends up having to lay down to rest her back." Admin. R. 246. Darby said Stout no 

longer cooks anything that takes very long, and that she only shops for "smaller things that don't take 

long to get .... " Admin. R. 248. She stated that Stout now "wears clothes that are easy to get on" 

and that she "brushes her hair and puts it in a ponytail" because "she is unable to style her hair." 

Admin. R. 247. Additionally, Darby stated that Stout used to paint and sew, but that Stout no longer 

engages in these hobbies ve1y often because "she can't sit up for ve1y long .... " Admin. R. 250. 

The ALJ considered Darby's report but found that it tended to support the conclusion that 

Stout remained capable of activities within the limitations of her RFC assessment. He did not 

believe Darby's report suggested that Stout would be unable to perform work restricted to meet her 

RFC assessment. An ALJ must consider the statements of a lay witness, and must give reasons 

germane to the witness in order to discount the statements. Valentine v. Comm 'r ofSoc. Sec. Admin., 

574 F.3d 685, 694 (9'h Cir. 2009). AnALJ need not clearly link the reasons to her determination that 

the lay witness testimony should be discounted, as long as she notes germane reasons somewhere 

in the decision and they are supported by substantial evidence. Lewis v. Apfel, 236 F.3d 503, 512 

(9'h Cir. 200 I). Fmiher, when the statements of a lay witness are similar to the claimant's subjective 

complaints, then an ALJ's clear and convincing reasons for rejecting the claimant's testimony are 

considered to be germane to the lay witness. Valentine, 574 F.3d at 694. 

Here, Darby's statements regarding Stout's activities of daily living are substantially the same 

as Stout's subjective complaints, and the ALJ discounted Darby's statements based, in paii, on the 

same rationale she used to discount Stout's subjective testimony. Specifically, the ALJ found that 

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Case 3:14-cv-01697-JO Document 18 Filed 10/22/15 Page 7 of 11
the objective medical evidence, treatment notes, and Stout's daily activities do not support Darby's 

statements "[t]o the extent that[] Darby suggests that [Stout's] impairments render her unable to 

work .... " Admin. R. 39. The ALJ's rationale for discounting Stout's subjective statements applies 

equally to Darby's function report. Therefore, the ALJ's reasons for discounting Darby's statements 

are supported by the record and germane to Darby. The ALJ's evaluation of the lay witness 

statements will not be disturbed. 

The ALJ also commented that Darby's close friendship with Stout and the desire to help her 

likely influenced Darby's statements regarding Stout's abilities. Admin. R. 3 9. This is an improper 

reason for discounting the statements of a lay witness, because it is not germane to the particular 

witness. Indeed, such reasoning would exclude statements from all the friends and family of any 

claimant. Friends and family members and others in a position to observe a claimant's symptoms 

and daily activities are competent sources of relevant information about the claimant's condition. 

Dodrill v. Shalala, 12 F.3d 915, 918 (9'h Cir. 1993). Their statements cannot be discounted solely 

because of their relationship to the claimant. However, because the ALJ provided a proper basis for 

discounting Darby's statements independent of her friendship with Stout, the introduction of the 

additional commentary was inconsequential. Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d at 

1197. 

IV. Development of Record 

Stout argues that the ALJ failed to fully and fairly develop the record, because she did not 

obtain a copy of a 2012 MRI study. Pl.'s Opening Brief at 8. This argument refers to a lumbar spine 

MRI from October 2012. Admin. R. 355-56. Stout first made the ALJ aware of the MRI study at 

her administrative hearing, after which the ALJ obtained a release of information from Stout with 

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Case 3:14-cv-01697-JO Document 18 Filed 10/22/15 Page 8 of 11
which she requested updated medical records from the clinic that perfonned the MRI. Admin. R. 

58, 276. The case record contains the records that she received in response to her request. The 

cmTent case record does not include a copy of the MRI study, but does include chart notes reflecting 

a discussion of the MRI results as well as objective clinical findings by the primmy care provider. 

Admin. R. 356, 361. 

In Social Security cases, the ALJ has a duty to fully and fairly develop the record. Brown v. 

Heckler, 713 F.2d 441, 443 (9'h Cir. 1983). Because Stout appeared without representation at the 

hearing, the ALJ had a heightened duty to ensure that the record was complete. Cox v. Califano, 587 

F.2d 988, 991 (9'h Cir. 1978). The ALJ's duty to supplement a claimant's record is triggered when 

there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the 

evidence. Webb v. Barnhart, 433 F.3d 683, 687 (9'h Cir. 2005); iv/ayes v. };fassanari, 276 F.3d 453, 

459-460 (9'h Cir. 2001 ). 

Here, the chmi notes are not ambiguous and the ALJ did not find the record inadequate to 

evaluate Stout's claim. The chart notes indicated that Stout continued to have an abnormal MRI and 

that the degeneration in her lumbm· spine had "mildly worsened" since her last MRI in 2007. Admin. 

R. 361, 394. The contemporaneous clinical findings, however, remained relatively unchanged with 

nonnal muscle tone, strength, reflexes, and gait and Stout continued to have negative straight leg 

raise tests for radiculopathy. Admin. R. 361. Stout's pain with medications remained about the 

same and she had only begun to consider a consultation with neurosurge1y. Admin. R. 356, 394. 

The inclusion of a copy of the MRI images would add nothing useful to the case record. The 

treatment notes reflect that Stout's medical providers interpreted the MRI images to show only 

mildly worsened degeneration and the clinical findings were consistent with that interpretation. 

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ALJ s are not authorized or qualified to interpret MRI images. Here, it was appropriate for the ALJ 

to defer to Stout's medical providers' interpretation of the MRI together with the contemporaneous 

clinical findings regarding Stout's limitations. I find no error in the ALJ's development of the 

record. 

V. Step Five Finding 

Stout challenges the ALJ' s determination at step five that jobs exist in the national economy 

that accommodate the limitations in Stout's RFC. The ALJ determined that Stout retained the RFC 

to perform a range of work requiring light exertion, but not the full range of light work. When a 

claimant cannot perform the full range of work at a given level of exertion, an ALJ cannot use the 

medical-vocational rules in 20 C.F.R. Part 404, Subpart P, Appendix 2, to resolve the question of 

disability. Instead, the ALJ must obtain the testimony of a vocational expert to detennine whether 

jobs exist that accommodate the claimant's RFC. Hoopai v. Astrue, 499 F3d 1071, 1077 (9'h Cir 

2007); kfoore v. Apfel, 216 F.3d 864, 869 (9'h Cir. 2000); Burkhart v. Bowen, 856 F2d 1335, 1341 

(9'h Cir 1988). 

Here, the ALJ elicited testimony from a vocational expert based on the limitations she found 

supported by the record. The VE testified that a person with the limitations in Stout's RFC could 

perfo1m the activities required in light unskilled occupations such as cashier and small products 

assembly. The VE estimated that these occupations represent over halfa million jobs in the national 

economy. Admin. R. 97. Thus, substantial evidence supports the ALJ's conclusion that a 

significant number of jobs exist in the national economy that are not precluded by the limitations in 

Stout's RFC. 

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Case 3:14-cv-01697-JO Document 18 Filed 10/22/15 Page 10 of 11
Stout challenges the VE' s testimony that the cashiering and small products assembly 

occupations can be performed either sitting or standing. Stout relies on the broad description of 

unskilled work used in Social Security Ruling 83-12, which says that in unskilled jobs, "a person 

cannot ordinarily sit or stand at will." 1983 WL 31253 at *4. This argument has no merit because 

the ALJ was entitled to rely on the experience and expertise of the VE regarding the specific 

occupation he identified, instead of the broad description of unskilled work in SSR 83-12. 

Accordingly, I find no e!Tor in the ALJ' s step five dete1mination. 

CONCLUSION 

Stout's assignments of e!Tor cannot be sustained. Accordingly, the Commissioner's final 

decision is AFFIRMED. 

DATED this 2a"aay of October, 2015. 

-11- OPINION AND ORDER 

E . .J_gnes, Senior Judge 

!ates District Court 

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