1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DEBRA ANN SIMPSON,

Plaintiff, Civ. No. 6:14-cv-01492-MC

v. OPINION AND ORDER

CAROLYN W. COLVIN,

Acting Commissioner of Social Security,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff Debra Ann Simpson brings this action for judicial review of the Commissioner’s 

decision denying her application for benefits. This court has jurisdiction under 42 U.S.C. §§ 

405(g) and 1383(c)(3). 

On November 14, 2011, Simpson filed an application for disability insurance benefits and 

supplemental security income benefits. Following a hearing, the administrative law judge (ALJ) 

determined Simpson is not disabled. TR 27-37.

1 Simpson argues that the ALJ erred by: (1)

finding her not credible; (2) failing to credit the opinion of examining physician Dr. Raymond 

Nolan; (3) failing to credit the limitations identified by a physical therapist; (4) failing to credit 

the lay evidence; (5) failing to include Simpson’s mental impairments at steps two and four; and 

 1 “TR” refers to the Transcript of Social Security Administrative Record provided by the Commissioner.

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(6) finding Simpson could perform past work. For the reasons stated below, the Commissioner’s 

decision is AFFIRMED.

STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner’s decision if the decision is based on 

proper legal standards and the legal findings are supported by substantial evidence in the record. 

42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

“Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such 

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Hill 

v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 

(9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative 

record as a whole, weighing both the evidence that supports and that which detracts from the 

ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can 

reasonably support either affirming or reversing, ‘the reviewing court may not substitute its 

judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d 

519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).

DISCUSSION

A claimant is disabled if he or she is unable 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 Social Security Administration utilizes a five step sequential evaluation to 

determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial 

burden of proof rests upon the claimant to meet the first four steps. If the claimant satisfies his 

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3 – OPINION AND ORDER

burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 

C.F.R. § 404.1520. 

At step two, the ALJ found that Simpson suffers from severe impairments of bilateral 

carpal tunnel syndrome, degenerative disc disease of the cervical spine, degenerative disc disease 

of the lumbar spine, bilateral foot osteoarthritis, degenerative joint disease of the left knee, left 

eye macular degeneration wet, and right eye macular degeneration dry. TR 19-30. At the hearing, 

Simpson testified that it is mostly the pain in her neck, back, and shoulders that prevents her 

from working. TR 57.

In assessing Simpson’s RFC, the ALJ concluded Simpson could perform light work as 

defined in 20 C.F.R. 404.1567(b) and 416.967(b). TR 32. Specifically, the ALJ determined 

Simpson could lift ten pounds frequently and twenty pounds occasionally, but could not climb 

ladders, ropes or scaffold. The ALJ limited Simpson to occasionally balance, stoop, kneel, 

crouch, or crawl, with occasional bilateral overhead reaching, frequent bilateral reaching in other 

directions, and frequent bilateral handling. Simpson cannot drive at night and must avoid 

moderate exposure to operational control of moving machinery, hazardous machinery, and 

unprotected heights. Finally, the ALJ concluded Simpson is limited to occupations requiring 

frequent near acuity. TR 32-33. At step four, the ALJ determined Simpson could perform past 

relevant work as a fundraiser. TR 36. Thus, the ALJ concluded Simspon was not disabled. Id.

As noted, Simpson argues the ALJ made multiple errors requiring remand. I discuss each 

alleged error in turn.

1. The ALJ’s Adverse Credibility Determination

In making an adverse credibility determination regarding Simpson’s subjective reporting 

on the severity of her symptoms, the ALJ was required to provide “specific, clear and convincing 

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4 – OPINION AND ORDER

reasons” for rejecting Simpson’s testimony. Vasquez v. Astrue, 572, F.3d 586, 591 (9th Cir. 

2009) (quoting Smolen v. Charter, 80 F.3d 1273, 1282 (9th Cir. 1996)). The ALJ provided 

several such reasons. 

The ALJ noted that despite alleging disability as of February 8, 2010, Simpson performed 

substantial gainful activity in August through October of that year. TR 29, 35. No evidence 

suggested Simpson quit that job due to her limitations. Instead, she left due to stress and 

disapproval of the way others treated her. TR 29, 53-54, 67. As I have previously concluded, the 

fact a claimant performs substantial gainful activity after the alleged onset date is, on its own, a 

clear and convincing reason for finding the claimant not fully credible as to the extent of her 

limitations. Gartzke v. Colvin, 2015 WL 5178709 at *7 n.7 (D. Or.).

2

The ALJ pointed to other valid reasons for finding Simpson not credible. For example, 

the ALJ concluded Simpson’s activities of daily living did not align with her complaints of pain. 

Simpson testified that the pain in her shoulders prevents her from simply reaching across a table 

or picking something up. TR 56. The ALJ pointed to the fact that Simpson drives, prepares her 

own meals on a daily basis, performs light yard work, and does chores such as sweeping, 

laundry, and dishes. TR 34-35. Simpson’s sister noted Simpson performed 2-3 hours of 

household chores, such as mopping and hand weeding, per day. TR 324. The ALJ did not err in 

concluding Simpson’s daily activities contradicted her subjective reporting of her limitations. 

Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012).

The ALJ also pointed to medical records showing Simpson displayed good range of 

motion and had normal gait and muscle tone. TR 34. Despite Simpson’s claims that she cannot 

 2 As noted by the ALJ, there is no evidence or argument that Simpson’s 2010 fundraising job was a mere 

unsuccessful trial work period. TR 29; see also Lingenfelter v. Astrue, 504 F.3d 1028, 1038-39 (9th Cir. 2007) 

(discussing fact that trial work periods will not adversely affect a claim of disability).

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5 – OPINION AND ORDER

reach across a table, multiple records indicate Simpson had full range of motion in her upper 

extremities. In September 2011, Simpson’s physical therapist noted Simpson had full range of 

motion in her upper extremities and “did not report any discomfort with repetitive arm use.” TR 

380. During a consultative examination in April 2012, Simpson had full range of motion. TR 

452-53. 

Finally, the ALJ noted that the objective medical evidence revealed mild to moderate 

degenerative changes. The objective findings are at odds with Simpson’s self-reports of 

debilitating pain. 

As in many social security cases, Simpson’s case relies in large part on her credibility. 

The above reasons are sufficiently specific, demonstrating the ALJ did not arbitrarily discredit 

Simpson’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) (internal citation omitted). The ALJ provided clear and convincing reasons, supported by 

substantial evidence in the record, for finding Simpson less-than credible. 

2. Dr. Nolan’s Opinion

Simpson argues the ALJ erred in failing to fully credit the opinion of Dr. Nolan. Dr. 

Nolan examined Simpson on April 7, 2012. Dr. Nolan noted Simpson had a normal gait and 

could transfer from sitting to standing without difficulty. TR 452. Simpson was able to walk on 

her toes and heels, and performed a normal squat rise maneuver, tandem, and Rombert. Id. Dr. 

Nolan observed Simpson had generally good range of motion. Simpson had normal muscle tone 

with no evidence of atrophy or fasciculation. TR 453.

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Dr. Nolan diagnosed: bilateral knee pain, with nonspecific examination; bilateral carpal 

tunnel syndrome; probable early osteoarthritis of the hands; arthralgias wrists; and nonspecific 

left shoulder pain. TR 453.

The ALJ gave little weight to Dr. Nolan’s opinion. Simspon argues the ALJ erred in 

failing to credit the following comment of Dr. Nolan: “She should be able to sit for at least six 

hours in an eight-hour day and stand and/or walk at least four hours in an eight-hour day.” TR 

453. The ALJ noted Dr. Nolan’s exertional limitations were “somewhat consistent with the 

record[.]” TR 36. Of course that is simply another way of stating that Dr. Nolan’s exertional 

limitations are somewhat inconsistent with the record. 

“Where there exists conflicting medical evidence, the ALJ is charged with determining 

credibility and resolving any conflicts.” Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012).

If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ 

may only reject it by providing specific and legitimate reasons that are supported by substantial 

evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chater, 81 

F.3d 821, 830-31 (9th Cir. 1995). 

The state non-examining phsyicians concluded that rather than being able to stand and/or 

walk “at least four hours” in an eight-hour workday, Simpson could sit, stand, or walk six hours 

in an eight-hour workday. The ALJ gave those opinions substantial weight. TR 35. The ALJ 

concluded the non-examining opinions were consistent with the medical record as a whole. 

The ALJ also noted that Dr. Nolan relied on Simspon’s subjective reporting. “An ALJ 

may reject a treating physician's opinion if it is based ‘to a large extent’ on a claimant's selfreports that have been properly discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 

1041 (9th Cir. 2008). Substantial evidence supports the ALJ’s conclusion. Despite noting 

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7 – OPINION AND ORDER

Simpson could transfer from sitting to standing without difficulty, had a normal gait, and 

performed a normal squat rise maneuver, TR 452, Dr. Nolan concluded Simpson should 

minimize squatting and kneeling and avoid climbing stairs. TR 453. While Dr. Nolan’s opinion 

conflicts with his own observations during the examination, it matches with Simpson’s 

subjective complaints that she “has difficulty squatting and kneeling and has to go up and down 

stairs sideways.” TR 452. The discrepancy between Dr. Nolan’s opinion and notes is a clear and 

convincing reason for the ALJ to disregard Dr. Nolan’s opinion. Bayliss v. Barnhart, 427 F.3d 

1211, 1216 (9th Cir. 2005) (citing Weetman v. Sullivan, 877 F.2d 20, 23 (9th Cir. 1989); 

Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (ALJ may reject a physician’s 

opinion if it conflicts with the physician’s other findings)).

As discussed above, the ALJ assigned more weight to the opinions of the nonexamining 

physicians. Dr. Nolan’s opined that Simpson “should be able . . . to stand and/or walk at least 

four hours in an eight-hour day.” TR 453. Contrary to Simpson’s argument, Dr. Nolan’s opinion 

is not a specific limitation that Simpson could only stand and walk for four hours a day. To the 

extent that Dr. Nolan’s opinion conflicted with those of the non-examining physicians, the ALJ’s 

weighing of the conflicting evidence was supported by the record. 

3. Physical Therapist Tom Zomerschoe’s Opinion

Tom Zomerschoe, a physical therapist, examined Simpson in September 2011. 

Zomerschoe opined Simpson was essentially limited to sedentary work. Among other 

limitations, Zomerschoe concluded Simpson could stand and walk up to 30 minutes at a time for 

up to two hours per day. The ALJ gave some weight to Zomerschoe’s opinion, but rejected his 

standing and walking limitations. The ALJ noted the 30 minutes at a time for two hours per day 

limitations were contradicted by the rest of the medical record and Simpson’s activities of daily 

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8 – OPINION AND ORDER

living. Specifically, the ALJ stated, “the claimant’s longitudinal treatment record indicated that 

the claimant had additional functional abilities in the area of standing and walking and kneeling 

or crawling based on her reported activities and the medical record as a whole.” TR 35. 

As a physical therapist, Zomerschoe’s opinion is that of an “other source.” § 404. 

1513(d); Croft v. Comm’r of Soc. Sec., 2015 WL 1246245 at *4 (D. Or.). Therefore, the ALJ 

need only provide a germane reason for rejecting his opinion. Nguyen v. Chater, 100 F.3d 1462, 

1467 (9th Cir. 1996). The ALJ did not entirely disregard Zomerschoe’s opinion. He simply 

concluded that other opinions in the record, from “acceptable medical sources” were entitled to 

more weight on the issue of how long Simpson could stand and walk each day. 

The medical record as a whole supports the ALJ’s conclusion that Zomerschoe’s walking 

and standing limitations were too restrictive. Although Simpson complained of knee pain, 

objective tests of that knee revealed only minimal degenerative joint spacing with no 

osteophytosis. TR 439. Other testing on Simpson’s knee revealed no acute issues, and revealed 

Simpson had full range of motion and strength in her knees. TR 425. In 2011, Simpson reported 

to the ER for chest pain and shortness of breath. Although dizziness prevented Simpson from 

walking much that day, she reported having “a good exercise capacity.” TR 408. In December 

2013, Simpson had no difficulty walking during an examination. TR 555. Similarly, objective 

medical evidence of plaintiff’s back injuries revealed mild to moderate findings. TR 584.

The ALJ’s conclusion that Zomerschoe’s limitations and findings were inconsistent is 

also supported by the record. Zomerschoe observed Simpson to have full range of motion in her 

upper and lower extremities. TR 380. Although Simpson told Zomerschoe that she could not 

climb stairs, she “performed well with ambulation on both even and uneven terrain[.]” Id.

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Despite Simpson’s complaints of discomfort when kneeling or squatting, Zomerschoe noted 

Simpson “performed fairly well with all activities.” TR 381.

The ALJ provided germane reasons for rejecting Zomerschoe’s opinion that Simpson is 

limited to standing and walking two hours per workday.

4. Jenne DeArmond’s Third Party Function Report

In August 2012, Simpson’s sister Jenne DeArmond provided a third party function report. 

TR 322-29. DeArmond stated she and Simpson had “very little time spent together.” TR 322. 

DeArmond stated Simpson could not work long hours on her feet. DeArmond stated Simpson 

performed 2-3 hours of household chores (laundry, hand weeding flower beds, dishes, sweeping) 

per day. TR 324. DeArmond stated Simpson lost interest in many of her hobbies and could spend 

no more than two hours on her feet, and could walk only 15 minutes before resting. TR 327.

An ALJ must take into account lay witness testimony as to a claimant's symptoms or how 

an impairment affects the claimant's ability to work. Molina v. Astrue, 674 F.3d 1104, 1114 (9th 

Cir. 2012). Here, the ALJ did just that by giving DeArmond’s opinion some weight as her 

comments regarding Simpson’s ability to do light household chores were generally consistent 

with someone capable of light work. TR 36. Additionally, DeArmond’s opinion that Simpson 

could only spend two hours per day on her feet and had to rest after walking 15 minutes mirror

Simpson’s own testimony regarding her limitations. By properly discounting Simpson’s own 

testimony, the ALJ provided a germane reason for rejecting DeArmond’s similar testimony. 

Molina, 674 F.3d at 1119 (a germane reason to discount lay witness testimony is “where the lay 

testimony is similar to other testimony that the ALJ validly discounted or where the testimony is 

contradicted by more reliable medical evidence that the ALJ credited.”).

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5. Simpson’s Mental Impairments

The ALJ concluded that Simpson’s mental impairments, considered singly and in 

combination, were not severe as they presented only minimal limitations on Simpson’s ability to 

work. In making that determination, the ALJ noted that Simpson’s mental limitations were well 

managed with prescription medications. Simpson admitted Effexor relieves her anxiety. TR 61. 

Additionally, the ALJ noted that despite claims of severe mental symptoms, Simpson only 

attended a few mental health counseling sessions before quitting. Although Simspon argued the 

problems stemmed from her counselor, when the agency assigned a new counselor to Simpson, 

Simpson did not maintain appointments with that counselor. TR 62. An ALJ may look to an 

unexplained failure to seek or follow a prescribed course of treatment in determining a 

claimant’s credibility. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Finally, the ALJ 

pointed to the opinions of the state agency pyschologists, who concluded Simpson’s mental 

impairments presented only mild functional limitations. The ALJ’s conclusion that Simpson’s 

mental impairments presented only minimal limitations on her ability to work is supported by 

substantial evidence in the record.

6. The ALJ’s Determination that Simpson Could Perform Past Work

Relying on testimony from the VE, the ALJ concluded Simpson could perform past work 

as a fundraiser. Simpson’s assignment of error at stage four relies on her above arguments. 

However, as described above, the ALJ’s decision that Simpson could perform light work was 

supported by substantial evidence in the record and free of legal error. Therefore, the ALJ’s 

decision is affirmed. 42 U.S.C. § 405(g); Batson v. Comm’r for Soc. Sec. Admin., 359 F.3d 1190, 

1193 (9th Cir. 2004).

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CONCLUSION

The ALJ’s decision is free of legal error and supported by substantial evidence. The 

Commissioner’s final decision is therefore AFFIRMED.

IT IS SO ORDERED.

DATED this 18th day of December, 2015.

_______/s/ Michael J. McShane ________

Michael McShane

United States District Judge

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