IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DEBRA M. MCNATT, 6:15-CV-00584-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

DREW L. JOHNSON

1700 Valley River Drive

Eugene, OR 97405

(541) 434-6466 

JOHN E. HAAPALA, JR.

401 E. 10th Avenue

Suite 240

Eugene, OR 97401

(541) 345-8474 

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

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Case 6:15-cv-00584-BR Document 15 Filed 05/02/16 Page 1 of 16
DAVID MORADO

Regional Chief Counsel

JORDAN D. GODDARD 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-2733 

Attorneys for Defendant

BROWN, Judge.

Plaintiff Debra M. McNatt seeks judicial review of a final

decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff's application

for Supplemental Security Income (SSI) under Title XVI of the

Social Security Act. This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). 

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff filed an application for SSI on January 26, 2012,

and alleged a disability onset date of January 1, 2011.1 

1 Plaintiff provided an alleged onset date of January 15,

2010, in her application, but at the hearing the ALJ accepted

Plaintiff’s request to amend her alleged onset date to January 1,

2011. Tr. 85, 253.

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Tr. 85.2 Her application was denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held a

hearing on November 21, 2013. Tr. 245-73. At the hearing

Plaintiff and a vocational expert (VE) testified. Plaintiff was

represented by an attorney. 

On December 19, 2013, the ALJ issued an opinion in which he

found Plaintiff is not disabled and, therefore, is not entitled

to benefits. Tr. 13-21. On February 11, 2015, that decision

became the final decision of the Commissioner when the Appeals

Council denied Plaintiff's request for review. Tr. 6-8. See

Sims v. Apfel, 530 U.S. 103, 106-07 (2000). 

BACKGROUND

Plaintiff was born on May 17, 1958, and was 55 years old at

the time of the hearing. Tr. 85. Plaintiff has a GED. Tr. 267. 

She has past relevant work experience as an apartment manager. 

Tr. 20. 

Plaintiff alleges disability due to arthritis, depression,

anxiety, fibromyalgia, gout, stomach disorders, and “severe pain

throughout body all the time.” Tr. 102. 

Except when noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence. After carefully reviewing the

2

 Citations to the official transcript of record filed by

the Commissioner on September 10, 2015, are referred to as "Tr."

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medical records, this Court adopts the ALJ’s summary of the

medical evidence. See Tr. 18-20.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden, a claimant must demonstrate her

inability "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 ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)). 

The district 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 as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

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(9th Cir. 2009)). It is more than a mere scintilla [of evidence]

but less than a preponderance. Id. (citing Valentine, 574 F.3d

at 690). 

The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006). 

 

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

2007). See also 20 C.F.R. § 416.920. Each step is potentially

dispositive. 

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 At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 416.920(b). See also Keyser v. Comm’r of

Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. 

§ 416.920(c). See also Keyser, 648 F.3d at 724. 

At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of a

number of listed impairments that the Commissioner acknowledges

are so severe they preclude substantial gainful activity. 20

C.F.R. § 416.920(a)(4)(iii). See also Keyser, 648 F.3d at 724.

The criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments). 

If the Commissioner proceeds beyond Step Three, she must

assess the claimant’s Residual Functional Capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite her limitations. 20 C.F.R.

§ 416.945(a). See also Social Security Ruling (SSR) 96-8p. “A

'regular and continuing basis' means 8 hours a day, for 5 days a

week, or an equivalent schedule." SSR 96-8p, at *1. In other

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words, the Social Security Act does not require complete

incapacity to be disabled. Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885

F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work she has done in the past. 20 C.F.R. § 416.920(a)(4)(iv). 

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 416.920(a)(4)(v). See also

Keyser, 648 F.3d at 724. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 

The Commissioner may satisfy this burden through the testimony of

a VE or by reference to the Medical-Vocational Guidelines set

forth in the regulations at 20 C.F.R. part 404, subpart P,

appendix 2. If the Commissioner meets this burden, the claimant

is not disabled. 20 C.F.R. § 416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged 

in substantial gainful activity since her January 26, 2012,

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application date. Tr. 15.

At Step Two the ALJ found Plaintiff has the severe

impairments of fibromyalgia, bilateral hip bursitis, and

degenerative joint disease in multiple joints. Tr. 15. The ALJ

found Plaintiff’s depression, tremors, and gastroesophageal

reflux disease (GERD) are not severe. Tr. 16-17. 

At Step Three the ALJ concluded Plaintiff's impairments do

not meet or equal the criteria for any Listed Impairment from 20

C.F.R. part 404, subpart P, appendix 1. The ALJ found Plaintiff

has the RFC to perform light work. Tr. 17. The ALJ also found

Plaintiff is limited to frequent grasping, handling, fingering,

and feeling bilaterally. Tr. 17. 

At Step Four the ALJ concluded Plaintiff is able to perform

her past relevant work a an apartment manager as that job is

“generally performed in the national economy.” Tr. 20. 

Accordingly, the ALJ found Plaintiff is not disabled. 

DISCUSSION

Plaintiff contends the ALJ erred when he (1) partially

rejected Plaintiff’s testimony; (2) rejected the opinion of

Plaintiff’s treating doctor Clyde Byfield, M.D.; (3) partially

rejected the lay-witness statement of Kerry Sanchez; and 

(4) failed to include all of Plaintiff’s restrictions in his

hypothetical to the VE.

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I. The ALJ gave clear and convincing reasons for partially

rejecting Plaintiff’s testimony.

Plaintiff alleges the ALJ erred when he failed to give clear

and convincing reasons for partially rejecting Plaintiff's

hearing testimony.

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment

or combination of impairments could reasonably be expected to

produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th

Cir. 1986). The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity. 

Smolen, 80 F.3d at 1284.

If the claimant satisfies the above test and there is not

any affirmative evidence of malingering, the ALJ can reject the

claimant's pain testimony only if she provides clear and

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th

Cir. 1995)). General assertions that the claimant's testimony is

not credible are insufficient. Id. The ALJ must identify "what

testimony is not credible and what evidence undermines the

claimant's complaints." Id. (quoting Lester, 81 F.3d at 834).

At the hearing Plaintiff testified she suffers from

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fibromyalgia, which causes her to be in severe pain; she has

tremors; and she suffers from anxiety. Tr. 254. Plaintiff

acknowledged at the hearing that she had indicated on her

application for benefits that she had stopped working as an

apartment manager in 2010 because the building manager no longer

needed an apartment manager and Plaintiff had to care for her

four grandchildren. Nevertheless, at the hearing Plaintiff

testified she also stopped working as an apartment manager in

2010 because she could no longer do the work that was required

for that position, which included painting, cleaning, and

replacing appliances. Tr. 255. Plaintiff testified she has

suffered fibromyalgia for almost four years and is in constant

pain. Tr. 257. Plaintiff conceded at the hearing that she was

suffering from fibromyalgia and experiencing pain at the time she

was working as an apartment manager, but it has become “worse

since.” Tr. 257-58. Plaintiff testified she cannot bend or move

two or three days per week, and she stays in bed because she

hurts all over. Plaintiff stated her pain caused her to be

severely depressed. Plaintiff noted she has been taking antianxiety medication and/or an antidepressant for “a long time.” 

Tr. 259. Plaintiff testified “certain lights, florescent lights

. . . will trigger anxiety” as well as loud noises on some days. 

Tr. 259. Plaintiff testified she will not grocery shop alone

because her anxiety can “hit” suddenly and cause her to pass out. 

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Tr. 260. Plaintiff noted she suffers anxiety attacks sometimes

up to twice per week even when she is taking medication. 

Tr. 261.

The ALJ found Plaintiff’s “medically determinable

impairments could reasonably be expected to cause the alleged

symptoms,” but Plaintiff’s testimony “concerning the intensity,

persistence and limiting effects of [her] symptoms are not

entirely credible.” Tr. 18. The ALJ noted Mike Milstein, M.D.,

radiologist, reported x-rays of Plaintiff’s hands did not show

any rheumatoid arthritis or erosive arthritis of the hands. 

Tr. 209-10. In addition, William Hinz, M.D., examining

rheumatologist, noted on October 24, 2012, that Plaintiff had a

ganglion cyst on her right wrist, but her “28 joint exam

demonstrates no synovitis and normal range of motion in all

joints.” Tr. 181. Dr. Hinze conducted a bilateral examination

of Plaintiff’s feet and noted “no synovitis, no MTP squeeze pain,

prominent bunions bilaterally. Muscle strength is 5 out of 5 in

all extremities.” Tr. 181. The ALJ found Plaintiff’s reported

level of pain and effects of her limitations were undermined by

these reports. 

The ALJ also noted Plaintiff’s treating physician, 

Dr. Byfield, prescribed gababentin for Plaintiff’s pain and

believed Plaintiff was taking that medication. Plaintiff,

however, reported to Dr. Hinz in September 2012 that she never

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started taking gababentin. Tr. 183. Plaintiff advised Dr. Hinz

that she “often reads possible side effects [of medication] and

it scares her away from the meds.” Tr. 183. Dr. Hinz also

recommended Plaintiff undergo a formal sleep study because it

appears she suffers from “probable obstructive sleep apnea,”

which is causing her to sleep poorly and, in turn, increases her

fibromyalgia symptoms. Tr. 182. Plaintiff, however, did not

undergo a sleep study. Plaintiff also testified at the hearing

that she takes only ibuprofen for her pain because “my doctor

doesn’t believe in pain pills or he doesn’t give me anything

else.” Tr. 258. The record, however, reflects Dr. Byfield has

prescribed gabapentin, amipripyline, and lyrica.

Finally, the ALJ noted the inconsistency between Plaintiff’s

statement in her application that (1) she stopped working in 2010

because the building manager no longer needed an apartment

manager and she had to care for her four grandchildren and 

(2) her testimony at the hearing that she stopped working because

she could not perform the requirements of the job. 

On this record the Court finds the ALJ provided clear and

convincing reasons supported by substantial evidence in the

record for finding Plaintiff's testimony was only partially

credible. The Court, therefore, concludes the ALJ did not err

when he rejected Plaintiff's testimony in part.

II. The ALJ did not err when he rejected the August 2012 opinion

of Dr. Byfield.

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Plaintiff contends the ALJ erred when he rejected the August

2012 opinion of Plaintiff’s treating physician Dr. Byfield. 

Specifically, in August 2012 Dr. Byfield stated in a treatment

note that Plaintiff suffers “[s]evere fibromyalgia . . . with

impairments that do make her totally disabled as discussed in

[History of Present Illness] HPI. Has not tolerated

amipripyline, gabapentin or lyrica.” Tr. 196.

An ALJ may reject a treating physician's opinion when it is

inconsistent with the opinions of other treating or examining

physicians if the ALJ makes "findings setting forth specific,

legitimate reasons for doing so that are based on substantial

evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957

(9th Cir. 2002)(quoting Magallanes v. Bowen, 881 F.2d 747, 751

(9th Cir. 1989)). When the medical opinion of a treating

physician is uncontroverted, however, the ALJ must give "clear

and convincing reasons" for rejecting it. Thomas, 278 F.3d at

957. See also Lester v. Chater, 81 F.3d 821, 830-32.

The ALJ rejected Dr. Byfield’s opinion on the ground that it

reflected Plaintiff’s “subjective report of her capabilities.” 

Tr. 20. The ALJ also found the debilitating symptoms that

Plaintiff reported to Dr. Byfield and that formed the basis 

for Dr. Byfield’s opinion were not credible. In addition, 

Dr. Byfield relied at least in part on Plaintiff’s lack of

success with gabapentin, but, as noted, Plaintiff reported to 

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Dr. Hinz that she never took the gabapentin prescribed by 

Dr. Byfield. Moreover, neither Dr. Hinz nor Plaintiff’s other

examining physicians opined Plaintiff is disabled or totally

unable to work. Lloyd Wiggins, M.D., reviewing physician also

concluded Plaintiff is not disabled.

On this record the Court concludes the ALJ did not err when

he rejected Dr. Byfield’s August 2012 opinion because the ALJ

provided legally sufficient reasons supported by substantial

evidence in the record for doing so.

III. The ALJ did not err when he partially rejected the statement

of Plaintiff’s friend, Kerry Sanchez.

On April 7, 2012, Plaintiff’s friend, Kerry Sanchez

completed a third-party adult function report in which she

indicated she has known Plaintiff for ten years and that

Plaintiff’s symptoms have become worse. Sanchez reported

Plaintiff takes care of her four grandchildren and her pets. 

Sanchez noted Plaintiff cooks, cleans, helps her grandchildren

with their homework, grocery shops, does laundry, and does other

general household chores. Tr. 135-36. Sanchez reported

Plaintiff has limited mobility, can walk 10-20 minutes before

needing to rest, has trouble getting up after sitting for

prolonged periods, cannot lift more than eight pounds, and cannot

stand for long periods. Tr. 137-38.

Lay testimony regarding a claimant's symptoms is competent

evidence that the ALJ must consider unless she "expressly

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determines to disregard such testimony and gives reasons germane

to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511

(9th Cir. 2001). See also Merrill ex rel. Merrill v. Apfel, 224

F.3d 1083, 1085 (9th Cir. 2000) ("[A]n ALJ, in determining a

claimant's disability, must give full consideration to the

testimony of friends and family members."). The ALJ's reasons

for rejecting lay-witness testimony must also be "specific." 

Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006).

The ALJ rejected the portion of Sanchez’s statement in which

she noted Plaintiff could not lift more than eight pounds on the

ground that it was not supported by the medical evidence and was

inconsistent with Plaintiff’s reported level of activity. In

particular, Plaintiff reported she had trouble grocery shopping

alone due to anxiety rather than because she could not lift items

weighing more than eight pounds. In addition, none of

Plaintiff’s treating or examining physicians indicated Plaintiff

was unable to lift more than eight pounds.

The Court concludes on this record that the ALJ did not err

when he partially rejected Sanchez’s statement because the ALJ

provided specific reasons germane the witness for doing so.

IV. The ALJ did not err in his hypothetical to the VE.

Plaintiff contends the ALJ erred when he relied on the VE’s

testimony because the ALJ failed to include all of Plaintiff's

limitations in the hypothetical posed to the VE.

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Because the Court has found the ALJ properly rejected

Plaintiff’s testimony in part, properly rejected Dr. Byfield’s

August 2012 opinion, and properly partially rejected Sanchez’s

statement, the Court concludes the ALJ did not err when he did

not include in his hypothetical to the VE all of the limitations

set out in Plaintiff’s testimony, Sanchez’s statement, or in the

opinion of Dr. Byfield and when he relied on the VE’s testimony

in response to his hypothetical. 

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 2nd day of May, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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