SHERRIL. SPILLERS, 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

Plaintiff, 

6: l 5-cv-490-TC 

FINDINGS & RECOMMENDATION 

v. 

Commissioner of Social Security, 

Defendant. 

COFFIN, Magistrate Judge: 

Plaintiff brings this proceeding to obtain judicial review of the Commissioner's final decision 

denying plaintiffs application for disability insurance benefits and supplemental security income 

benefits. 

Plaintiff asserts disability beginning September 30, 2010, due to: diabetes; obesity; 

degenerative disc disease; carpal tunnel syndrome; reactive airway disease with linear densities, 

opacities, scarring, and atelectasis of the lungs with peribronchial wall thickening. After a hearing, 

in which an administrative law judge (ALJ) determined that plaintiff is not disabled, the Appeals 

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Council remanded to update the record regarding plaintiffs impairments and residual functional 

capacity (RFC) among other things. Tr. 42, 192-94. After the second hearing, a new ALJ 

determined that plaintiff became disabled on September 29, 2013 (due to her turning 50 and 

application of medical- vocational rule 201.14) and not before that date. 1 Plaintiff asserts disability 

beginning three years prior to the ALJ's determination and asserts that the ALJ erred in: (1) rejecting 

the opinions of treating nurse practitioners; (2) rejecting plaintiffs testimony; (3) rejecting lay 

witness statements; and in ( 4) relying on vocational expert opinion based on an incomplete 

hypothetical. 

A. Nurse Practitioner Opinions 

Nurse Practitioners do not fall under the category of "acceptable medical source" to establish 

a medical impairment. See 20 C.F.R. § 404.1513(a)(l-5). However, the Social Security 

Administration may also use evidence from other medical sources, including nurse practitioners, to 

show the severity of an impairment and how it affects a claimant's ability to work. 20 C.F.R. § 

404.1513(d)(l). Opinions from nurse practitioners are important and should be evaluated on key 

issues such as the severity and functional effects of a claimant's impairments, SSR 06-03p, but they 

are not entitled to the same deference as opinions from accepted medical sources. Molina v. Astrue, 

674 F.3d 1104, 1111 (9th Cir. 2012). Accordingly, the ALJ may discount an opinion from a nurse 

practitioner by giving reasons germane to the opinion. Id. 

On February 21, 2011, family nurse practitioner (FNP) Shannon Thom provided an 

1

The ALJ determined that plaintiff could perform the occupations of order clerk, charge 

account clerk, and addresser prior to plaintiffs fiftieth birthday. Tr. 51-52 

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assessment of plaintiffs abilities based on her monthly visits going back to July of2010. Tr. 642-45. 

FNP Thom opined that plaintiffs back pain, shortness of breath, and fatigue are worsened by 

exertion and that she cannot ambulate long distances (less than a block). Tr. 642-3. FNP Thom 

further opined that plaintiff sit or could stand for 15 minutes at time and for less than two hours total 

in an eight-hour work day, with a need to switch from one or the other at will. Tr. 643. FNP Thom 

also indicates that plaintiff will routinely need to take unscheduled breaks of unknown duration 

during the work day. Tr. 643-44. Thom also opines that plaintiff should rarely lift less than ten 

pounds and never lift anything more, and rarely twist/stoop/crouch/climb. Tr. 644. FNP Thom 

asserts that plaintiff will also be "off task" 25% or more of the time and would be absent from work 

more than four times per month. Tr. 644-45. Finally, FNP Thom opines that plaintiff will need to 

limit her contact with germs, pollutants and also need to wear a portable oxygen mask when 

working. Tr. 645. 

On August 22, 2012, FNP Kaylene Cribbs, who began treating plaintiff in December of2011, 

opined that plaintiffs pulmonary fibrosis makes it very difficult for her to work full-time. Tr. 650. 

The ALJ noted that Thom did not address plaintiffs continued cigarette smoking or its effects 

on her functioning. Tr. 50. The ALJ gave little weight to the opinion finding it inconsistent with 

objective findings and treatment notes. The ALJ further noted that the opinion: 

is not consistent with the objective findings in the claimant's treatment notes. In 

particular, in April 2013, treating physician, Mildred Rowley, MD, indicated that the 

claimant's pulmonary fibrosis was "stable" (Ex. 16F/12). Dr. Rowley also noted that 

the claimant's pulmonary effort was "normal" and that her breath sounds were 

"normal" without any evidence of wheezing (Ex. 16F/12). In addition, Dr. Rowley 

found that the claimant demonstrated normal range of motion without any edema or 

tenderness. Similarly, during a May 2013 appointment, Dr. Rowley observed that the 

claimant demonstrated "normal"pulmonary effort without any respiratory distress 

(Ex. 16F/8). Due to these notable inconsistencies between Ms. Thom's opinion for _ 

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Tr. 50. 

the exclusive purposes of the claimant's application for disability benefits, and the 

treatment notes, the undersigned gives her opinion little weight and consideration. 

Plaintiff asserts that Dr. Rowley also allowed plaintiff remain on supplemental oxygen 24 

hours per day. However, plaintiffs pulmonologist indicated plaintiff did not need to be on 

supplemental oxygen any longer. Tr. 798. Plaintiff also takes issue with the remark regarding 

smoking because plaintiff had significantly reduced her smoking to a five cigarettes per day by June 

of 2013. Tr. 793. However, it is unclear how many cigarettes plaintiff was smoking at the time 

Thom rendered her opinion in 2011. At the March 3, 2012 hearing, plaintiff indicated she had cut 

down to half a pack per day by that point, stating she had "cut down a whole lot." Tr. 101.2 The 

failure of Thom to address the issue is certainly germane to her opinion. 

Plaintiff also argues that Dr. Rowley's notes are based on plaintiffs condition while sitting 

and "chances are, if plaintiff got up and tried to move around and be more active during one fDr. 

Rowley's examination, Dr. Rowley would have noted similar limitations to those of FNP Thom." 

Reply (#15) at p. 3. However, this is speculation on plaintiffs part and the ALJ's comparison of the 

doctor's treating notes and Thom's opinion is a germane reason for discounting Thom's opinion. 3 

Plaintiff also takes issue with the apparent assumption that "stable " has anything to do with the 

degree of severity of impairments. Nonetheless, the comparison is still germane to the opinion. The 

ALJ did not err in discounting FNP Thom's opinion. 

The ALJ similarly did not err in giving little wight to FNP Cribb's opinion relying on the 

2

At the November 25, 2013 hearing, plaintiff asserted that she was down to two or three 

cigarettes a day from a pack and a half a day. Tr. 82. 

3

In addition, the ALJ did limit plaintiff to sedentary work. 

Page 4 - FINDINGS & RECOMMENDATION 
same medical record. 

B. Plaintiffs Testimony 

Plaintiff testified that just walking 20 feet will leave her short of breath. Tr. 100. Plaintiff 

also asserted limitations in sitting and standing to 15-20 minutes at a time and an ability to lift only 

five to seven pounds. Tr. 109. Plaintiff asserts she is unable to work on a continuing basis. 

The ALJ found plaintiff to lack credibility: 

The claimant's allegation that she unable to walk more than 20 feet at one 

time is not consistent with the objective observation or treatment notes in the record. 

There is also no prescription for a walker, nor any evidence in the record regarding 

the need or use of an assistive device. 4 In particular, in April 2013, treating 

physician, Dr. Rowley observed that the claimant had normal reflexes, and that her 

coordination was "normal" (Ex. 16F/12). Upon examination of the claimant's 

musculoskeletal system, Dr. Rowley also found that the claimant demonstrated 

"normal range of motion" without any evidence of edema or tenderness. The 

claimant also presented with normal pulmonary effort with normal breath sounds 

(Ex. 16F /12). In addition, there is no indication by Dr. Rowley that the claimant had 

any difficulty walking. 

Similarly, there is no objective evidence in the medical record that is 

consistent with the claimant's allegation of an inability to sit for more than 15 to 30 

minutes, stand more than 10 to 15 minutes, or lift more than 7 to 8 pounds. The 

discrepancies between the claimant's allegations and unremarkable progress notes in 

the record severely diminish her credibility. 

In addition, the claimant's allegation that she had disabling pulmonary 

impairments is not consistent with her candid statements and presentation. Also 

during her April 2013 appointment with Dr. Rowley, the claimant reported that her 

pulmonologist told her that she did not need to be on supplemental oxygen (Ex 

16F 110). In addition, the fact the claimant acknowledged at the hearing that she still 

smoked cigarettes calls into question the veracity of her allegations. 

The claimant's activities of daily living are also not fully consistent with 

allegations of disabling impairment that would preclude work consistent with the 

residual functional capacity specified above. For example, the claimant and her 

sister reported that was still able to drive, shop, sew, crotchet, prepare meals, and 

4

FNP Walker did accommodate plaintiffs request for a walker with a seat and prescribed 

one. Tr. 743. 

Page 5 - FINDINGS & RECOMMENDATION 
watch television. Although the claimant testified that she rarely drove due to vision 

problems, there is no such complaints in the routine progress notes. In addition, the 

claimant testified that she was still able to read, and use a computer to access her 

facebook account, which is again, not fully consistent with allegations of vision 

problems. These discrepancies further erode the credibility of the claimant's 

allegations. 

Tr. 47-48. The ALJ also noted that there is no opinion from an acceptable medical source that 

claimant is as limited as she alleges. Tr. 48. 

"[O]nce a claimant produces objective medical evidence of an underlying impairment, an 

[ ALJ] may not reject a claimant's subjective complaints based solely on a lack of objective medical 

evidence to fully corroborate the alleged severity of pain." Bunnell v. Sullivan, 947 F.2d 341, 345 

(9th Cir. 1991) . If the ALJ finds plaintiffs symptom testimony not to be credible, he must 

specifically make findings that support such conclusion, and those findings must be sufficiently 

specific to show that the ALJ did not arbitrarily discredit plaintiffs testimony. Id. at 345. If there 

is no affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for 

rejecting plaintiffs testimony regarding the severity of symptoms. Reddick v. Chater, 15 7 F .3 d 715, 

722 (9th Cir. 1998). 

Unlike the ALJ's treatment of the nurse practitioner opinions, needing only germane reasons 

to discount them, simply noting unsupportive treatment notes is insufficient to provide the necessary 

clear and convincing reasons for rejecting plaintiffs symptom testimony. Moreover, the activities 

cited by the ALJ do not demonstrate an ability to walk more than 20 feet or sit and stand for longer 

than 10 to 15 minutes. See, e.g., Tr. 378, 74 (used to crotchet for 10 to 30 minutes per day, but can't 

even do that due to carpal tunnel); Tr. 75 (she goes to the store to shop if they have an electronic 

wheelchair). Also, plaintiffs inability to work is primarily based on her pulmonary issue and not any 

Page 6 - FINDINGS & RECOMMENDATION 
purported vision issues. 5 

Although failure to follow treatment recommendations, such as quitting smoking, can provide 

a clear and convincing reason to reject testimony, plaintiff has nearly quit and it is unclear from the 

record what impact smoking may have had on her ability to work during the time period in question. 6 

However, this demonstrates a problem with plaintiffs testimony in that it is not clear, as it was with 

FNP Thom's opinion, that accepting plaintiffs allegations demonstrates disability. Therefore, a 

remand is necessary to address the error in the discrediting of plaintiffs testimony. 

The decision whether to remand a case for additional evidence, or simply to award benefits 

is within the discretion of the court. Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing 

Stone v. Heckler, 761F.2d530 (9th Cir. 1985)). Remand is appropriate where further proceedings 

would be likely to clear up defects in the administrative proceedings, unless the new proceedings 

would simply serve to delay the receipt of benefits and are unlikely to add to the existing findings. 

McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Evidence should be credited 

that was rejected during the administrative process and remand for an immediate 

award of benefits if (1) the ALJ failed to provide legally sufficient reasons for 

rejecting the evidence; (2) there are no outstanding issues that must be resolved 

before a determination of disability can be made; and (3) it is clear from the record 

that the ALJ would be required to find the claimant disabled were such evidence 

credited. 

Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 

Accordingly, a remand for further proceedings will not be allowed solely so that the ALJ can 

5

lt should also be noted that the ALJ's findings regarding plaintiff lifting abilities nearly 

matches plaintiffs testimony. Compare Tr. 46 (ALJ finds plaintiff limited to lifting no more than 

5 to 10 pounds). 

6

Moreover, the role of nicotine addiction may play a role in any purported failure to 

follow treatment advice. See Strutz v. Colvin, 2005 WL 4727459 at *7 (D.Or. Aug. 10, 2015). 

Page 7 - FINDINGS & RECOMMENDATION 
make specific findings regarding testimony. Rather, where an ALJ provides legally insufficient 

reasons for rejecting plaintiffs testimony, that testimony is treated as true and the case remanded for 

an award of benefits if the testimony establishes disability. Harmen v. Apfel, 211 F3d. 1172, 1179 

(9th Cir. 2000). 

It is not clear from plaintiffs testimony (or that of her sister which substantially mirrors 

plaintiffs testimony) that she was disabled prior to the date the ALJ determined her to be disabled. 

Accordingly, a remand is necessary to determine whether plaintiffs allegations establish disability 

prior to the date determined by the ALJ. Upon remand, the ALJ can further address lay witnesses 

testimony and seek an opinion from a vocational expert as to the impact of any limitations noted by 

these sources, that the ALJ finds supp01ied, on ability to work during the time period in question. 

CONCLUSION 

For the reasons stated above and pursuant to Sentence 4 of 42 U.S.C. § 405(g), the decision 

of the Commissioner should be reversed and the case remanded for further proceedings. 

This recommendation is not an order that is immediately appealable to the Ninth Circuit 

Court of appeals. Any notice of appeal pursuant to Rule 4(a)(l), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district court's judgment or_ appealable order. The 

parties shall have fourteen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the court. Thereafter, the parties shall have 

fourteen ( 14) days within which to file a response to the objections. Failure to timely file objections 

to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right 

to de novo consideration of the factual issues and will constitute a waiver of a party's right to 

Page 8 - FINDINGS & RECOMMENDATION 
appellate review of the findings of fact in an order or judgment entered pursuant to this 

recommendation. 

/7 

DATED this -----1----'-=- day of February 2016. (/(C:/;;>7 

Page 9 - FINDINGS & RECOMMENDATION 

THOMAS M COFFIN / . 

United ~tates Magistrate Judge 

/