IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

JACQUETTA NACOSTE-HARRIS, ) 

) 

Plaintiff, ) 

) 

~ ) 

) 

CAROLYN W. COL VIN, Acting Commissioner of ) 

Social Security, ) 

) 

Defendant. ) 

JONES, J., 

3: 14-CV-01594-JO 

OPINION AND ORDER 

Plaintiff Jacquatta Nacoste-Harris ("Nacoste-Harris") appeals the Commissioner's decision 

to deny her application for supplemental security income under Title 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 

Nacoste-HmTis applied for supplemental security income alleging disability beginning in 

April 2008 due to an intestinal infection, weight loss, migraines, and hemorrhoids. Admin. R. 236, 

257. The Administrative Law Judge ("ALJ") applied the sequential disability deterrnination process 

described in 20 C.F.R. § 416.920. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987). He found 

Nacoste-Harris' s ability to work limited by migraine headaches and a history of cocaine dependence, 

but ultimately concluded she was not disabled. Admin. R. 122-131. 

1 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 1 of 15
Nacoste-Harris then submitted new evidence to the Appeals Council, which vacated the 

ALJ's decision and remanded the case with instructions to consider the new evidence, take any 

fmther action needed to complete the administrative record, and issue a new decision. Admin. R. 

138-140. 

After remand, the ALJ found that Nacoste-Harris' s ability to work was adversely affected by 

migraine headaches, a history of cocaine dependence, and myofascial pain syndrome. Admin. R. 

16. The ALJ found that, despite these impainnents, Nacoste-Harris retained the residual functional 

capacity ("RFC") to perfo1m a range oflight work, with limitations on climbing, overhead work, and 

environmental exposure to noises, fumes, gases, and hazards. Admin. R. 18. 

The vocational expe1t ("VE") testified that a person with Nacoste-Harris's RFC could 

perform the activities and functions required in light, unskilled occupations such as cashier, small 

products assembly, and retail marker, which represent hundreds of thousands of jobs in the national 

economy. Admin. R. 24, 94-95. As a result, the ALJ found that Nacoste-HaiTis was not disabled. 

Admin. R. 24. 

STANDARD OF REVIEW 

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

standards and the findings of fact are suppo1ted by substantial evidence in the record as a whole. 

Tommasettiv. Astrue, 533 F.3d 1035, 1038 (91h Cir. 2008). Under this standard, the Commissioner's 

factual findings must be upheld if suppmted by inferences reasonably drawn from the record even 

if evidence exists to suppo1t another rational interpretation. Batson v. Comm 'r of Soc. Sec. Admin., 

359 F.3d 1190, 1193 (91h Cir. 2004);Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9'h Cir. 1995). 

2 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 2 of 15
DISCUSSION 

I. Claims of Error 

Nacoste-Harris contends the ALJ improperly assessed the severity of her impairments at step 

two of the decision-making process, discounted the credibility of her subjective statements, gave 

insufficient weight to the medical opinions of Drs. Moreno and Ogisu, discounted the lay witness 

statements, and failed to accommodate all of the limitations arising from her migraines and 

myofascial pain syndrome in the residual functional capacity assessment. 

II. The Step Two Severity Requirement 

Nacoste-Hanis contends the ALJ ened by finding that her abdominal pain was not a severe 

impahment for the purposes of step two of the decision-making process. The purpose of step two 

is to eliminate frivolous cases in which the claimant fails to allege any impahment that has a 

significant adverse impact on the ability to work. At step two, the ALJ must determine whether any 

combination of impahments has more than a de minimis impact on the claimant's ability to do basic 

work activities. Here, the ALJ resolved that question in favor of Nacoste-Harris. Accordingly, 

Nacoste-Harris has not identified any hatmful enor at step two. See Burch v. Barnhart, 400 F.3d 

676, 682 (9'h Cir. 2005) (any error in omitting an impairment from the list of severe impairments at 

step two was hatmless because step two was resolved in claimant's favor); Lewis v. Astrue, 498 F.3d 

909 (9'h Cir. 2007) (failure to list impairment as severe at step two was harmless because the 

limitations posed by the impairment were considered at step four). 

Additionally, the ALJ considered all the evidence of functional limitations from NacosteHanis's abdominal pain, nausea, and vomiting, as discussed more fully in the following sections of 

this opinion. He concluded that the evidence did not show that these symptoms significantly limited 

3 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 3 of 15
her ability to do basic work activities. Admin. R. 16. For an impairment to be found severe, the 

impahment must significantly limit a claimant's physical or mental ability to do basic work 

activities. 20 C.F.R. § 416.920( c ). Because Nacoste-Hanis failed to produce credible evidence that 

her abdominal pain, nausea and vomiting significantly limited her ability to do basic work activities, 

the ALJ did not en by finding those impairments not severe. 

III. Credibility Determination 

In her application materials, Nacoste-Hanis alleged that she could not work because an 

intestinal infection, migraines, and hemonhoids left her "unable to function." She alleged her 

condition caused vomiting for three days straight two to three times per month resulting in weight 

loss. Admin. R. 18, 257. At her first administrative hearing in 2011, Nacoste-Harris alleged 

additional symptoms, including chronic pain in the neck, hips, right arm, and right shoulder, tingling 

in her right foot, cramps in the low back, weakness in the legs, vomiting, and depression. Admin. 

R. 18, 75. In addition, Nacoste-Harris said she suffered medication side effects including double 

vision, episodes of dizziness, and loss of balance. Admin. R. 19, 79. At her second administrative 

hearing in 2013, Nacoste-Hanis alleged she had fibromyalgia, arthritis in her neck, and muscle 

spasms. Admin. R. 48. She said she could sit in a chair or stand for about seven minutes, walk a 

half a block, and lift no more than a gallon of milk. Admin. R. 19, 53-54. 

The ALJ believed that Nacoste-Hanis suffered from impairments, namely m1grame 

headaches and myofascial pain syndrome, which limited her to a range of light work with the 

restrictions itemized in her RFC assessment. He found Nacoste-Hanis less than fully credible, 

however, regarding her claims that she had additional limitations exceeding those in her RFC 

assessment. Admin. R. 19. Thus, he discredited her claims that she would be unable to sit, stand, 

4 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 4 of 15
walk, and lift sufficiently to meet the requirements of light work and that she would be unable to 

engage in any work meeting the restrictions outlined in the RFC assessment. 

An adverse credibility determination must include specific findings suppo1ied by substantial 

evidence and clear and convincing reasons. Carmickle v. Comm 'r, Soc. Sec. Adm in., 533 F.3d 1155, 

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

be sufficiently specific to pe1mit the reviewing court to conclude that the ALJ did not arbitrarily 

discredit the claimant's testimony. Tommasetti v. Astrue, 533 F.3d at 1039. In assessing credibility, 

the ALJ must consider all 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 parties 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 F.3d at 1039. 

If the ALJ' s credibility determination is supported by substantial evidence, the court may not engage 

in second-guessing. Thomas v. Barnhart, 278 F.3d. 947, 959 (9'h Cir. 2002). 

The ALJ's decision reflects that he considered all the evidence relating to the proper factors 

for assessing credibility. As previously noted, the ALJ discounted Nacoste-Harris's allegations 

regarding the intensity, persistence, and frequency of her vomiting episodes and weight loss. Admin. 

R. 16. Nacoste-Harris testified that these symptoms had worsened over time and that she continued 

to experience vomiting episodes several times per week. Admin. R. 16, 49-50. The ALJ found that 

the evidence showed her nausea and vomiting symptoms had actually improved over time and 

appeared to be largely controlled with treatment. Admin. R. 16. 

At the alleged onset of disability in April 2008, Nacoste-Harris experienced frequently 

recuning nausea and vomiting, but extensive evaluations revealed no cause and her physicians 

5 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 5 of 15
thought these symptoms were most likely related to chronic use of narcotic pain medications for 

headaches. Admin. R. 385, 391, 481, 487, 652, 654, 663-664, 888-889, 950. When she reduced her 

dosage of narcotics, these episodes improved according to her own report. Admin. R. 487-488. The · 

extensive negative evaluations and normal findings suppott the ALJ's conclusion that NacosteHarris' s claims of ongoing debilitating nausea, vomiting and abdominal pain were not supp01ted by 

the objective medical evidence. Admin. R. 16. 

The ALJ also found Nacoste-Hanis's allegations regarding ongoing vomiting episodes 

inconsistentwithhertreatmenthistoty. Admin. R.16. Nacotse-Hanis testified that she experienced 

vomiting episodes two or three times a week lasting half a day or more. Admin. R. 16, 49-50. She 

told her primary care doctor that she had to go to the emergency room when such an episode began 

because her medications would not help once she slatted vomiting. Admin. R. 484. Medical records 

show that Nacoste-Hanis had emergency room visits for vomiting, nausea, attd abdominal pain, but 

these episodes subsided after she reduced her narcotic dosage in April 2008. Admin. R. 376, 381, 

3 85. Thereafter, she had only two emergency room visits for vomiting spells in 2009 and another 

one in 2011. Notably, at the time of the later episodes, she admitted she had not been taking her 

prescribed medications. Admin. R. 519, 527, 621. This history supports an adverse inference as to 

the credibility of Nacoste-Hanis's claim of ongoing debilitating nausea and vomiting episodes 

several times weekly. 

In addition, the gastroenterologists who treated Nacoste-Hanis found her nausea and 

vomiting symptoms reasonably controlled by medications. Admin. R. 16, 734-73 5. Impairments 

that m·e effectively controlled by medications are not disabling. Warre v. Comm 'r of Soc. Sec. 

Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Dr. DeGregorio was unable to offer an opinion 

6 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 6 of 15
regarding NacostecHall'is's ability to perform work-related activities. Admin. R. 16, 734-735. The 

ALJ discounted Nacoste-Harris's claim that her abdominal condition caused persistent excessive 

weight loss. Although Nacoste-Hatl'is lost weight initially, the record shows she gained 20 pounds 

after establishing an appropriate medication regimen. Admin. R. 16-17, 953. 

The ALJ discounted Nacoste-Harris's assertions regarding the limiting effects of her migraine 

headaches. Admin. R. 19. Again, the objective medical evidence was umemarkable, with negative 

diagnostic imaging ofher head and brain. Admin. R. 468, 828, 881. She had a neurology evaluation 

which uncovered no abnormalities. Admin. R. 892-894. Her physicians suspected rebound 

headaches, again related to overuse of narcotic pain medications. Admin. R. 19, 484, 488. NacosteHanis said that only narcotic pain medications relieved her headaches and she discontinued migraine 

prophylactic medications after brief trials, contra1yto medical advice. Admin. R. 484, 487-488, 894. 

Such failure to comply with a prescribed course of treatment may cast doubt on the veracity of a 

claimant's assetiions of disabling symptoms. Tonapetyan v. Halte1~ 242 F.3d 1144, 1147-48 (9'h Cir. 

2001). 

The ALJ also found Nacoste-Harris's allegations of persistent migraine headaches 

inconsistent with her treatment histo1y which showed she did not seek treatment for headaches for 

long periods after June 2008. Admin. R. 19, 22. When a claimant does not require treatment for an 

allegedly disabling condition, the ALJ may draw an adverse inference as to claims about the severity 

of the symptoms. Bruton v. ivfassanari, 268 F.3d 824, 828 (9'h Cir. 2001). Nacoste-Hanis testified 

that she continued to have frequent debilitating migraines despite terminating narcotic pain 

medications, but her treatment histo1y showing that she did not require treatment suggests that her 

symptoms improved. 

7 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 7 of 15
The ALJ noted that Nacoste-Harris appeared to engage in drug seeking behavior, suggesting 

that she might be exaggerating her symptoms to obtain narcotics. Admin. R. 19, 645. For example, 

at her emergency room visits in 2009, Nacoste-Han'is appeared to exhibit symptoms only when she 

thought she was being observed, but appeared to rest comfortably when she thought she was alone. 

Admin. R. 519, 521-522, 527, 529, 645. Indications of medication misuse due to dependency may 

support an ALJ' s adverse credibility determination. Edlund v. lvlassanari, 253 F .3d 1152, 1157 (9'h 

Cir. 2001 ). 

The ALJ considered Nacoste-Harris' s allegations of chronic pain in her neck, back, and hips, 

as well as weakness in her legs. Admin. R. 17. The treatment history shows that, although NacosteHarris alleged disability beginning in early 2008, she did not seek treatment for her orthopedic 

complaints until August 2011 when she reported to the emergency room saying she had been hit by 

a car. She had full range of motion of the knees and hips and her biggest complaint was a muscle 

spasm in the left leg. She had no break in the skin where she said the car hit her and she could 

ambulate without significant difficulty. X-rays of the left knee and hip were negative for 

abno1malities and MRI studies of the cervical and lumbar regions of the spine showed only minimal 

degenerative changes without indications of trauma. Admin. R. 17, 575, 576, 578, 592. 

Despite these unremarkable findings, six weeks later Nacoste-Harris sought treatment from 

an 011hopedic specialist for unbearable pain in the neck and lower back, radiating to the extremities. 

She restricted her range of motion in the neck and shoulders due to pain, but retained full strength 

in the upper extremities. Dr. Thomas diagnosed a cervical and lumbar strain. Admin. R. 730. At 

a follow up visit, Nacoste-Harris repo1ted an increase in her pain and her straight leg raise test was 

positive for pain. Admin. R. 730. 

8 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 8 of 15
Nacoste-HatTis did not have further treatment or evaluation of her pain complaints until she 

had another MRI study of her cervical spine in August 2012, which again showed mild to moderate 

degeneration. Admin. R. 883. In October 2012, she underwent evaluation by a microneurosurgical 

consultant for pain in her neck, right arm, lower back, and legs, and for headaches. Admin. R. 878. 

After pedorming a clinical evaluation and reviewing diagnostic imaging of her spine and brain, Dr. 

Baggenstos said he "did not see any structural abnonnality throughout her cervical and lumbar spine, 

or brain which would explain her cunent complaints." Admin. R. 17, 881. A follow up EEG 

examination was also normal. Admin. R. 875-876. In April 2013, Tatsuro Ogisu, M.D., performed 

a consultative evaluation and concluded that the objective findings, including MRI studies and 

physical evaluations, did not explain the level of pain or the leg weakness that Nacoste-Harris 

claimed. Admin. R. 20, 741-743. 

The ALJ also considered the medical opinions and lay witness statements, as discussed more 

fully below, and concluded they did not support Nacoste-Harris's allegation that she could not 

perfo1m work within the limitations outlined in her RFC assessment. Admin. R. 20-23. 

After considering the appropriate factors for evaluating credibility, the ALJ concluded that 

the evidence in the record did not support the degree of restriction Nacoste-Hanis alleged in her 

subjective statements. Admin. R. 19. The ALJ' s findings are based on reasonable inferences drawn 

from substantial evidence in the record and are sufficiently specific for me to conclude that the ALJ 

did not arbitrarily reject Nacoste-Harris's subjective statements. The ALJ's 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. 

Ill 

9 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 9 of 15
IV. Medical Opinions 

As noted previously, Dr. Ogisu performed a consultative physical evaluation in April 2013. 

Nacoste-Harris wore an inflatable neck brace and complained of neck pain radiating to the right 

shoulder and repeated episodes of collapsing and falling due to unexplained leg weakness. During 

the evaluation, she exhibited decreased effort and refused parts of the examination due to anticipated 

pain. Dr. Ogisu said his findings did not explain her back pain or leg weakness and MRI studies did 

not suppo1t the level of pain she claimed. In the absence of objective findings, Dr. Ogisu suggested 

that myofascial pain syndrome might explain her subjective pain. Admin. R. 741-743. The ALJ 

credited Dr. Ogisu's report and included myofascial pain syndrome among the impairments that 

adversely affected Nacoste-Harris's ability to work. Admin. R. 20. 

Dr. Ogisu then provided a Medical Source opinion ofNacoste-Harris's residual functional 

capacity. He opined that Nacoste-HaiTis could lift and cany 20 pounds occasionally and 10 pounds 

frequently, consistent with light exertion. He thought she could sit one hour at a time for a total of 

six hours, stand for 30 minutes at a time for a total of five hours, and walk for 15 minutes at a time 

for a total of four hours, during a typical work day. He also opined that Nacoste-Harris had limited 

reaching ability, limited ability to engage in postural activities such as crouching or stooping, and 

should not work at unprotected heights due to her subjective claims of collapsing due to unexplained 

leg weakness. Admin. R. 744-749. The limitations in Dr. Ogisu's opinion were largely consistent 

with the limitations in the ALJ' s RFC assessment regarding exertion, reaching, postural activities, 

and exposure to heights. Admin. R. 18, 23, 744-749. Indeed, the ALJ's RFC limitations appear to 

be more restrictive than Dr. Ogisu's opinion in some respects. Nonetheless, the ALJ gave Dr. 

Ogisu's opinion limited weight. Admin. R. 22. 

10 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 10 of 15
An ALJ may discount an examining physician's opinion that is inconsistent with the opinions 

of other physicians, if the ALJ makes findings setting forth specific, legitimate reasons for doing so 

that are based on substantial evidence in the record. Nfolina v. Astrue, 674 F.3d 1104, 1111 (9'h Cir. 

2012); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9'h Cir. 2005). If the opinion is not contradicted 

by another physician, the ALJ may reject it only for clear and convincing reasons. Thomas v. 

Barnhart, 278 F.3d 947, 956-57 (9'h Cir. 2002). To the extent the ALJ discounted Dr. Ogisu's 

opinion, he satisfied both standards. 

The ALJ pointed out that Dr. Ogisu found no objective or clinical evidence of an underlying 

pathology that would account for Nacoste-Harris' s complaints and subjective functional limitations. 

In the absence of any medical evidence, the ALJ reasonably infe!1'ed that Dr. Ogisu relied heavily 

on Nacoste-HaiTis's subjective statements and presentation in forming his opinion about her 

limitations. Admin. R. 22. An ALJ may properly discount a medical opinion that is premised 

primarily on subjective complaints that the ALJ found unreliable. Tonapetyan v. Halter, 242 F.3d 

1144, 1149 (9'h Cir. 2001 ). The ALJ explained his evaluation of Dr. Ogisu's opinion with specific, 

legitimate, clear and convincing reasons based on inferences reasonably drawn from substantial 

evidence in the record. Accordingly, I find no el1'or. 

Claudia Moreno, M.D., was Nacoste-HatTis's primary care provider beginning in about 

November 2011. Between Januaty 2012 and April 2014, Dr. Moreno submitted several letters 

indicating that Nacoste-Hal1'is could not work. Admin. R. 732, 733, 736, 7 51, 987. In Janumy 2012, 

Dr. Moreno said Nacoste-Harris could not work due to nausea and vomiting, signs of cervical 

impingement, and bereavement after her husband's death. Admin. R. 732. In March 2012, Dr. 

Moreno said Nacoste-Hanis did not have the ability to do her former job as a warehouse worker due 

11 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 11 of 15
to radicular neck symptoms from cervical nerve root impingement and chronic nausea and vomiting. 

Dr. Moreno opined that Nacoste-Harris should be approved for long term disability and social 

security benefits. Admin. R. 733. In October 2012, Dr. Moreno opined that Nacoste-Harris 

continued to have pain in the neck and upper body, nausea, vomiting, and migraines. She opined 

that Nacoste-Harris did not have the ability to sit for hours in front of a computer screen. Admin. 

R. 736. Dr. Moreno reiterated these statements in disability letters submitted in August 2013 and 

April 2014. Admin. R. 751, 987. 

The ALJ gave these disability letters little weight. Admin. R. 21. Dr. Moreno's opinion was 

contradicted by the functional assessment and opinion of Dr. Ogisu and by the opinions of the 

reviewing physicians. Admin. R. 110-117, 536-542, 744-749. Accordingly, the ALJwas entitled 

to discount her opinion by providing specific and legitimate reasons. 1\!lolina v. Astrue, 674 F.3d at 

llll;Bay/iss,427F.3dat 1216. 

The ALJ correctly found that Dr. Moreno failed to provide clinical findings from 

examinations or other objective medical evidence to support her opinion. Admin. R. 21. In addition, 

Dr. Moreno did not identify specific functional limitations or work-related activities that NacosteHarris could not do, other than sitting for hours at a computer. Instead, her letters indicate a blanket 

conclusion that Nacoste-HmTis was unable to work. An ALJ may properly reject a physician's 

opinion that is concluso1y and unsuppmied by clinical findings. Bayliss v. Barnhart, 427 F.3d at 

1216; 1\!!eanal v. Apfel, 172 F.3d 1111, 1117 (9'h Cir. 1999). In fact, the ALJ found Dr. Moreno's 

conclusion inconsistent with objective evidence. For example, Dr. Moreno based her disability 

opinion, at least partly, on the belief that Nacoste-Harris had a cervical nerve impingement, but the 

diagnostic imaging showed only mild to moderate degenerative changes in the cervical region of the 

12 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 12 of 15
spine without significant canal or nerve root involvement. Admin. R. 21. Finally, in the absence 

of col'l'oborating medical evidence, it appears Dr. Moreno premised her opinion on Nacoste-Hal'l'is' s 

subjective statements, which were properly discounted by the ALJ. 

The ALJ's determination that Dr. Moreno's disability letters were entitled to diminished 

weight was based on reasonable inferences drawn from the record as a whole. I find no error. 

V. Lay witness statements 

In June 2010, Nacoste-Hal'l'is's son Jacques Harris completed a Third Patiy Function report 

indicating that Nacoste-Hal'l'is had problems with vomiting, nausea, and headaches. Admin. R. 330-

337. He submitted a second undated statement in which he said Nacoste-Hal'l'is continued to have 

vomiting episodes two or three times per week, migraine headaches, neck pain with protrnding bones 

in the neck, a problem with the right shoulder, a burning and cramping sensation in the legs, and 

depression. Admin. R. 357. Nacoste-HatTis's friend Alicia Pendergraph submitted a statement dated 

November 15, 2011, saying that Nacoste-Hal'l'is had spinal issues that made her dizzy and shaky. 

Pendergraph said she saw Nacoste-HatTis fall and have difficulty getting back up. Pendergraph said 

she regulai·ly helped Nacoste-Hal'l'is with household chores because Nacoste-Hal'l'is's medical 

conditions made housework difficult. Admin. R. 355-356. The ALJ found these statements credible 

insofar as Harris and Pendergraph stated what they had observed, but viewed them with caution 

insofar as they purported to establish that Nacoste-Harris had patiicular functional limitations. 

Admin. R. 22. 

An ALJ must consider the testimony of a lay witness, but may discount it for reasons 

getmaneto the witness. Valentinev. Comm 'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). 

The ALJ' s reasons must be suppo1ied by substantial evidence, but may appear anywhere in the 

13 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 13 of 15
decision without being tied directly to the evaluation of the lay witness statement. Lewis v. Apfel, 

236 F.3d 503, 512 (9th Cir. 2001). When the statements of a lay witness are similar to the claimant's 

subjective complaints, an ALJ's reasons for discounting the claimant's testimony may be germane 

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

Here the ALJ considered the lay witness statements in his decision and accepted their 

observations. Adm in. R. 22. The lay witness statements regarding the functional impact ofNacosteHarris' s symptoms are substantially the same as her subjective statements. Accordingly, the ALJ's 

reasons for finding Nacoste-Harris not fully credible apply equally to the lay witness statements. 

Valentine, 574 F.3d at 694. 

The ALJ also commented that he viewed the lay witness statements with caution because 

Harris and Pendergraph lacked the expertise and motivation to offer an objective or functional 

assessment and because their affection for Nacoste-Harris appeared to influence their statements. 

Admin. R. 22. These are improper reasons for discounting the statements oflay witnesses, because 

they are germane to the particular witness. Such reasoning would exclude statements from all the 

friends and family of a 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. Sha/ala, 12 F.3d 915, 918 (91

h Cir. 1993). Their statements cannot 

be discounted solely because of their relationship to the claimant. 

However, because the ALJ' s decision includes a proper basis for discounting the lay witness 

statements about the functional limitations resulting from Nacoste-Hanis' s symptoms, independent 

of the lay witnesses relationships to her, I find the additional improper reasons inconsequential. 

14 - OPINION AND ORDER 

Case 3:14-cv-01594-JO Document 21 Filed 11/12/15 Page 14 of 15
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d at 1197; Valentine, 574 F.3d at 695. The ALJ's 

evaluation of the lay witness statements did not involve reversible error. 

VI. RFC Assessment 

Nacoste-Hanis claims the ALJ failed to account for limitations attributable to migraines and 

myofascial pain syndrome in the RFC assessment. This argument is unpersuasive because the ALJ 

considered and accounted for all the evidence in the record. The ALJ included in his RFC 

assessment all the functional limitations he found supported by the record. Because his findings are 

supported by a reasonable interpretation of the evidence, they must be upheld. Batson, 359 F.3d at 

1193; Andrews, 53 F.3d at 1039-40. Furthermore, an ALJ need not include limitations which he 

finds unsupported by the record. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). 

CONCLUSION 

Nacoste-Hanis' claims of enor cannot be sustained for the foregoing reasons. The 

Commissioner's decision is AFFIRMED. 

-t:. \.{W, 

DATED this t~ day ofEltffiber, 2015. 

15 - OPINION AND ORDER 

nes, Senior Judge 

!ates District Court 

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