IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

AUDREY NASH, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of Social 

Security, 

Defendant. 

Bruce W. Brewer 

Attorney at Law 

PO Box 421 

West Linn, Oregon 97068 

Attorney for plaintiff 

Billy J. Williams 

Janice E. Hebert 

United States Attorney's Office 

1000 S.W. Third Avenue, Suite 600 

Portland, Oregon 97201 

Martha A. Boden 

Social Security Administration 

Off ice of General Counsel 

701 Fifth Avenue, Suite 2900 M/S 221A 

Seattle, Washington 98104 

Attorneys for defendant 

Page 1 - OPINION AND ORDER 

Case No. 6:14-cv-01496-AA 

OPINION AND ORDER 

Case 6:14-cv-01496-AA Document 40 Filed 01/20/16 Page 1 of 10
AIKEN, Chief Judge: 

Plaintiff Audrey Nash brings this action pursuant to the 

Social Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial 

review of a final decision of the Commissioner of Social Security 

("Commissioner"). The Commissioner denied plaintiff's application 

for Title II disability insurance benefits. For the reasons set 

forth below, the Commissioner's decision is affirmed and this case 

is dismissed. 

PROCEDURAL BACKGROUND 

On June 29, 2012, plaintiff applied for disability insurance 

benefits, alleging disability beginning June 12, 2012. Tr. 178. 1 

Her application was denied initially and upon reconsideration. Tr. 

96, 110. On February 12, 2014, a video hearing was held before an 

Administrative Law Judge ("ALJ"). Plaintiff, represented by 

counsel, provided testimony. Tr. 57-81. On March 20, 2014, the ALJ 

issued a decision finding plaintiff not disabled within the meaning 

of the Act. Tr. 7-18. After the Appeals Council denied her request 

for review, plaintiff filed a complaint in this Court. Tr. 1-3. 

STATEMENT OF FACTS 

Born September 26, 1959, plaintiff was 52 years old on the 

alleged onset date of disability and 54 years old at the time of 

the hearing. Tr. 17. She completed two years of college. Tr. 81. 

Plaintiff worked previously as a delivery truck driver. Tr. 82. She 

1 The record before the Court contains multiple incidences 

of duplication. Where evidence occurs in the record more than 

once, the Court will generally cite to the transcript pages on 

which that information first appears. 

Page 2 - OPINION AND ORDER 

Case 6:14-cv-01496-AA Document 40 Filed 01/20/16 Page 2 of 10
alleges disability due to severe arthritis, diabetes, pseudotumor 

cerebri (increased pressure inside her skull), and obesity. Tr. 88, 

182. 

STANDARD OF REVIEW 

This 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. Hammock v. Bowen, 879 F.2d 498, 

501 (9th Cir. 1989). Substantial evidence is "more than a mere 

scintilla. It means such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion." Richardson v. 

Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations 

omitted) . The court must weigh "both the evidence that supports and 

detracts from the [Commissioner's] conclusions." Martinez v. 

Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable 

interpretations of the evidence are insignificant if the 

Commissioner's interpretation is rational. Burch v. Barnhart, 400 

F.3d 676, 679 (9th Cir. 2005). 

The initial burden of proof rests upon the claimant to 

establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th 

Cir. 1986). To meet this burden, the claimant must demonstrate an 

"inability to engage in any substantial gainful activity by reason 

of any medically determinable physical or mental impairment which 

can be expected . . . to last for a continuous period of not less 

than 12 months." 42 u.s.c. § 423 (d) (1) (A). 

The Commissioner has established a five-step sequential 

process for determining whether a person is disabled. Bowen v. 

Page 3 - OPINION AND ORDER 

Case 6:14-cv-01496-AA Document 40 Filed 01/20/16 Page 3 of 10
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502. First, the 

Commissioner determines whether a claimant is engaged in 

"substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. 

§ 404.1520(b). If so, the claimant is not disabled. 

At step two, the Commissioner evaluates whether the claimant 

has a "medically severe impairment or combination of impairments." 

Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c). If the 

claimant does not have a severe impairment or combination of 

impairments, she is not disabled. 

At step three, the Commissioner determines whether the 

claimant's impairments, either singly or in combination, meet or 

equal "one of a number of listed impairments that the 

[Commissioner] acknowledges are so severe as to preclude 

substantial gainful activity." Yuckert, 482 U.S. at 140-41; 20 

C.F.R. § 404.1520(d). If so, the claimant is presumptively 

disabled; if not, the Commissioner proceeds to step four. Yuckert, 

482 U.S. at 141. 

At step four, the Commissioner resolves whether the claimant 

can still perform "past relevant work." 20 C.F.R. § 404.1520(f). If 

the claimant can work, she is not disabled; if she cannot perform 

past relevant work, the burden shifts to the Commissioner. At step 

five, the Commissioner must establish that the claimant can perform 

other work existing in significant numbers in the national and 

local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 

404.1520(g). If the Commissioner meets this burden, the claimant is 

not disabled. 20 C.F.R. § 404.1566. 

Page 4 - OPINION AND ORDER 

Case 6:14-cv-01496-AA Document 40 Filed 01/20/16 Page 4 of 10
THE ALJ'S FINDINGS 

At step one of the process outlined above, the ALJ found 

plaintiff "ha[d] not engaged in substantial gainful activity since 

June 12, 2012, the alleged onset date." Tr. 12. At step two, the 

ALJ determined plaintiff's "degenerative disc disease of the lumbar 

spine with osteoarthritis, obesity, asthma, [and] carpal tunnel 

syndrome" were severe and resulted in significant work-related 

functional limitations. Id. At step three, the ALJ found 

plaintiff's impairments, singly and in combination, did not meet or 

equal the requirements of a listed impairment. Tr. 13. 

The ALJ then evaluated how plaintiff's impairments affected 

her ability to work. The ALJ resolved plaintiff possessed the 

residual functional capacity ("RFC") to: 

[P]erform light work as defined in 20 [C.F.R. §] 

404.1567(b) except she can do no more than occasionally 

kneel, crawl, stoop, climb and crouch. She can no more 

than frequently perform tasks requiring bilateral 

grasping, handling and fingering. She should avoid more 

than occasional exposure to fumes, dust, gases, poorly 

ventilated areas and other noxious odors and avoid 

concentrated exposure to heights, moving machinery and 

similar hazards. 

At step four, the ALJ determined plaintiff could not perform 

any past relevant work. Tr. 16. At step five, based on the VE's 

testimony and considering the plaintiff's age, work experience, and 

RFC, the ALJ found plaintiff was "capable of making a successful 

adjustment to other work that exists in significant numbers in the 

national economy." Tr. 1 7-18. Accordingly, the ALJ concluded 

plaintiff was not disabled under the Act. Tr. 18. 

Page 5 - OPINION AND ORDER 

Case 6:14-cv-01496-AA Document 40 Filed 01/20/16 Page 5 of 10
DISCUSSION 

Plaintiff argues the ALJ erred by (1) discrediting plaintiff's 

testimony without clear and convincing reasons for doing so; and 

(2) improperly evaluating the statements of plaintiff's daughter. 

I. Credibility 

Plaintiff argues the ALJ failed to provide clear and 

convincing reasons for rejecting her testimony concerning the 

severity of her symptoms. When a claimant's medically documented 

impairments reasonably could be expected to produce some degree of 

the symptoms complained of, and the record contains no affirmative 

evidence of malingering, "the ALJ can reject the claimant's 

testimony about the severity of . symptoms only by offering 

specific, clear and convincing reasons for doing so." Smolen v. 

Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A 

general assertion the claimant is not credible is insufficient; the 

ALJ must "state which . testimony is not credible and what 

evidence suggests the complaints are not credible." Dodrill v. 

Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered 

must be "sufficiently specific to permit the reviewing court to 

conclude that the ALJ did not arbitrarily discredit the claimant's 

testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) 

(internal citation omitted). If the "ALJ's credibility finding is 

supported by substantial evidence in the record, [the court] may 

not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 

959 (9th Cir. 2002) (citation omitted). The ALJ's overall 

credibility decision may be upheld even if not all of the ALJ's 

Page 6 - OPINION AND ORDER 

Case 6:14-cv-01496-AA Document 40 Filed 01/20/16 Page 6 of 10
reasons for rejecting the claimant's testimony are upheld. Batson 

v. Comm'r Soc. Sec., 359 F.3d 1190, 1197 (9th Cir. 2004). 

At the hearing, plaintiff testified severe back pain prevented 

her from sitting or standing for long periods of time and hindered 

her ability to walk or lift objects. Tr. 64-65, 74-75. Plaintiff 

also testified she has trouble holding objects because of numbness 

in her hands. Id. The ALJ determined plaintiff's medically 

determinable impairments could reasonably be expected to produce 

some degree of symptoms, but found plaintiff's "statements 

concerning the intensity, persistence and limiting effects of these 

symptoms not fully credible." Tr. 15. 

In making this adverse credibility finding, the ALJ first 

noted inconsistencies between plaintiff's testimony and plaintiff's 

statements in the record. Tr. 15. Consistency between an 

individual's statements is a "strong indication" of credibility. 

Thomas, 278 F.3d at 958. Consistent with her hearing testimony, 

plaintiff stated in a function report that she was only able to 

stand for a few minutes at a time, and stated in a disability 

report that she had no feeling in her fingers. Tr. 213, 240. 

However, plaintiff testified at the hearing as well as indicating 

to her doctors that she participated in fitness classes, yoga, and 

computer classes during the period of alleged disability. Tr. 68-

59, 311, 535. The ALJ found plaintiff's participation in these 

activities inconsistent with difficulty standing for more than a 

few minutes at a time and having no feeling in her fingers. The ALJ 

also noted plaintiff sought light duty work after her alleged onset 

Page 7 - OPINION AND ORDER 

Case 6:14-cv-01496-AA Document 40 Filed 01/20/16 Page 7 of 10
date of disability. Evidence that a claimant sought employment 

during the time she claimed disability is a legitimate reason to 

discount her credibility. Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 

1219, 1227 (9th Cir 2009). 

The ALJ erred in concluding plaintiff's symptom testimony was 

inconsistent with her testimony she is able to care for her cat, 

prepare meals, do laundry and dishes, grocery shop, and vacuum. Tr. 

206-08. In connection with these activities, plaintiff indicated 

limitations consistent with her symptom testimony - for example, 

she explained she sits down to prepare meals, and at the grocery 

store she "know[s] where the seats are & take[s] breaks." Tr. 207-

08. However, as the ALJ's determination is otherwise supported by 

substantial evidence, this error was harmless. See Batson, 359 F.3d 

at 1197. 

The ALJ also noted inconsistencies between plaintiff's 

testimony and the objective medical evidence. Tr. 15. The ALJ 

referred to examination findings that plaintiff had normal gait and 

motor functions, and could bend and touch the floor. Tr. 262, 314, 

322. The medical consultants who reviewed plaintiff's file at the 

initial and reconsideration levels of adjudication found the record 

indicated nothing more than "mild abnormalities." Tr. 16; see also 

tr. 94-94, 107-09. Although absence of medical corroboration alone 

is insufficient to negate credibility, it may support an adverse 

credibility finding in combination with other negative credibility 

factors. See Thomas, 278 F.3d at 959 (absence of supporting medical 

evidence was among specific, clear and convincing reasons to 

Page 8 - OPINION AND ORDER 

Case 6:14-cv-01496-AA Document 40 Filed 01/20/16 Page 8 of 10
discount plaintiff's testimony). Because the ALJ provided clear and 

convincing reasons for rejecting plaintiff's subjective symptom 

statements, the ALJ's credibility finding is affirmed. 

II. Lay Witness Testimony 

Plaintiff also argues the ALJ improperly discredited written 

statements from plaintiff's daughter. Generally, lay witness 

testimony describing a plaintiff's symptoms is "competent evidence 

that the ALJ must take into account." Molina v. Astrue, 647 F.3d 

1104, 1114 (9th Cir. 2012). "[I]n order to discount competent lay 

witness testimony, the ALJ 'must give reasons that are germane to 

each witness."' Id. (citing Dodrill, 12 F.3d at 919). An ALJ may, 

however, reject lay testimony when it is substantially similar to 

the claimant's testimony and the claimant's testimony has been 

rejected for clear and convincing reasons. Molina, 674 F.3d at 

1114. 

Plaintiff's daughter completed a third party report on October 

20, 2012, and a declaration on January 31, 2014. Tr. 216-27, 254-

55. In 2012, she reported plaintiff could only stand for minutes at 

a time, walking was painful for her back, and she spent most of her 

day sitting or lying down. Tr. 216, 218-19. In the same report, 

plaintiff's daughter reported plaintiff cared for her infant 

grandson, attended church regularly, and performed certain 

household chores. Tr. 218-19. 

The ALJ erred in concluding plaintiff's ability to care for 

her grandson was inconsistent with the symptom statements of 

plaintiff and her daughter. The ALJ inaccurately ref erred to 

Page 9 - OPINION AND ORDER 

I 

~ I 

Case 6:14-cv-01496-AA Document 40 Filed 01/20/16 Page 9 of 10
plaintiff's grandson as a "toddler," while the record indicates 

that, at the time plaintiff was able to take care of her grandson, 

he was merely 4 months old. Tr. 16, 218. Moreover, the ALJ ignored 

plaintiff's daughter's subsequent declaration, completed once the 

grandson actually was a toddler, indicating plaintiff was no longer 

able to care for the child. Tr. 254. 

Plaintiff's daughter's statements regarding plaintiff's 

ability to stand and walk, however, mirror plaintiff's statements 

on the same topics. As explained above, the ALJ properly 

discredited plaintiff's symptom testimony regarding standing and 

walking as inconsistent with plaintiff's statements about yoga and 

fitness classes and unsupported by the medical evidence. Because 

plaintiff's daughter's statements permissibly could be rejected for 

the same reasons, any error in failing to address the daughter's 

statements was harmless. See Molina, 674 F.3d at 1114. 

CONCLUSION 

The Commissioner's decision is AFFIRMED and this case is 

DISMISSED. 

IT IS SO ORDERED. 

·1rffVL· Dated this f~ILI_ day of January 2016. 

Ann Aiken 

United States District Judge 

Page 10 - OPINION AND ORDER 

Case 6:14-cv-01496-AA Document 40 Filed 01/20/16 Page 10 of 10