UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ANDREA DEE HOLLOWAY, 

Plaintiff, 

v. 

Commissioner of Social Security, 

Defendants. 

COFFIN, Magistrate Judge: 

6:14-cv-1657-TC 

ORDER 

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 December 31, 2006, due to right hip problems, chronic 

pain, and mental health problems. Tr. 121-22 .. After a hearing, an administrative law judge (ALJ) 

determined that plaintiff is not disabled. Plaintiff contends that the ALJ erred in: (1) discrediting 

psychogenic symptoms and limitations; (2) failing to credit Dr. Kay Dieter's assessment of 

limitations; (3) rejecting lay witness observations; ( 4) assessing plaintiffs credibility; (5) failing to 

include limitations in plaintiffs residual functional capacity assessment; and (6) relying on the 

Page 1 - ORDER 

Case 6:14-cv-01657-TC Document 22 Filed 10/05/15 Page 1 of 6
vocational expert's testimony. 

Plaintiffs Credibility 

Plaintiff tends to put the cart before the horse in that she argues that because the ALJ failed 

to give proper consideration to, for example, plaintiffs treating physician's opinion or her stated 

impairments, the ALJ failed to properly consider plaintiffs credibility based on the record as a 

whole. However, plaintiffs subjective complaints play a large role in determining whether treating 

opinion or alleged impairments have any impact on her ability to work. 

The ALJ determined that plaintiffs assertions regarding the intensity, persistence, and 

limiting effects of her medically determinable impairments are not fully credible. Tr. 29. The ALJ 

noted improvements with treatment such as use of CP AP and right hip surgery, exhibition of normal 

hip functioning, and exhibition of difficulty-free walking despite claims of need for an assistive 

device. Tr. 29-30. The ALJ further noted that cooperative disability investigation agents noted that 

plaintiff displayed normal stride without an assistive device and ability to bend at the waist with no 

hesitation. Tr. 31. The ALJ also noted that plaintiff routinely exhibited normal motor functioning, 

normal sensory functioning, and normal reflexes. Tr. 31. 

Morever, the ALJ noted that plaintiff gave inconsistent reports of the etiology of her weight 

loss claiming diet and exercise on the one hand and depression on the other. Tr. 31. The ALJ also 

took issue with plaintiffs claim of involuntary clenching of her hands, feet, and neck, as well as 

seizure-like activity noting that reported details varied considerably with doctors questioning the 

Page 2 - ORDER 

Case 6:14-cv-01657-TC Document 22 Filed 10/05/15 Page 2 of 6
veracity of the complaints. Tr. 32-33. 1 In short, the ALJ noted voluntary exaggeration of her alleged 

incapacitating dystonia, specifically noting that an attending physician during an ER visit observed 

that when her significant other quickly lifted a sheet to how him her toes, plaintiff moved her toes 

from a neutral position to a flexed position quickly. Tr. 34. The ALJ further noted during a January 

2012 appointment, Dr. Derek Clark concluded that plaintiff had an effort-dependent examination that 

was inconsistent with known dystonias. Tr. 34. Moreover, the ALJ noted that another doctor 

observed that plaintiffs flexion in her toes and hands reduced when distracted. Tr. 34. 

The ALJ also noted contradictory reports made during an ER visit for an alleged complete 

paralysis. Tr. 3 5. The ALJ further noted inconsistent reports from plaintiff regarding her drug abuse 

of opiates, methamphetamine, and marijuana. Tr. 35-36. 

The ALJ also cited plaintiffs daily activities as inconsistent with physical or psychological 

disability such as visiting casinos despite allegations of social anxiety and agoraphobia, a loss of 70 

pounds through diet, and exercise and babysitting a four year old for four to eight hours at a time. 

Tr. 41. In addition, the ALJ noted a criminal history that includes forgery, identity theft, and fraud. 

Tr. 42. 

The ALJ appropriately relied on lack of medical etiology for neurological dysfunction, 

inconsistent examination findings, and indications of symptom exaggeration to find plaintiff to lack 

credibility regarding her claimed limitations. See Light v. Social Sec. Admin., 119 F.3d 789, 792 

(9th Cir. 1997} (ALJ may consider reputation for truthfulness, inconsistencies between testimony 

and conduct, and daily activities in a finding that a claimant generally lacked credibility and to reject 

1

Plaintiff asserts she has a psychogenic disorder causing her alleged incapacitating 

dystonia, but she has not been formally diagnosed with any such disorder. 

·' 

Page 3 - ORDER 

Case 6:14-cv-01657-TC Document 22 Filed 10/05/15 Page 3 of 6
testimony). 

Psychogenic Symptoms and Limitations 

Plaintiff asserts that the ALJ erred in finding plaintiff to lack any psychogenic impairment. 

However, while plaintiff presents speculation from medical sources that her symptoms of dystonia 

may be psychogenic in nature, the ALJ properly found the symptoms exaggerated. Plaintiff fails to 

present an actual diagnosis of a medically determinable conversion disorder or psychogenic 

impairment. See Tr. 46. Such diagnosis is a prerequisite to finding that the impairment exists. See 

Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (Because none of the medical opinions 

included a finding of impairment, a diagnosis, or objective test results, plaintiff fails to meet the 

burden of establishing the impairment). Plaintiffs treating physician thought perhaps there was a 

conversion disorder versus genetic dystonia, but was not sure (Tr. 1059), and Dr. Derek Clark noted 

"likely conversion disorder, but cannot rule out unknown genetic dystonia (Tr. 1177, 1181 ). Because 

there is no diagnosis of a conversion disorder, the ALJ did not err in failing to include limitations 

from such a disorder and did not err in failing to undertake the special psychiatric review technique 

described at 20 C.F.R. § 404.1520a. 

Treating Physician's Opinion 

Dr. Kay Dieter opined that plaintiff requires breaks incompatible with full-time work, has 

an inability to maintain concentration required for work activity, and has an inability to maintain 

necessary attendance. Tr. 1136-39. The ALJ rejected Dr. Dieter's opinion because it was largely 

based on plaintiffs subjective reports which lack credibility. Tr. 46. Although plaintiff asserts that 

Page 4 - ORDER 

Case 6:14-cv-01657-TC Document 22 Filed 10/05/15 Page 4 of 6
the long-term care provided by Dr. Dieter necessarily dictates that Dr. Dieter's opinion is based on 

objective observation, the assessments could only come from an evaluation of plaintiffs self-reports 

as the office visits simply could not demonstrate actual daily activities, out-of-office exaggerations, 

etc. The ALJ appropriately rejected the opinfon. See Ukolov, 420 F.3d at 1006 (Despite apparent 

objective observations, the patient's ability to manipulate test results and other's observations of 

exaggeration permitted rejection of treating source opinion); Tommasetti v. Astrue, 533 F.3d 1035, 

1041 (9th Cir. 2008) (An ALJ may reject a treating physician's opinion if it is based "to a large 

extent" on a claimant's self-reports that have been properly discounted as incredible). 

Lay Witness 

Plaintiffs boyfriend provided a statement that plaintiff was unable to sit and stand long 

enough to work and lacked sufficient ability to concentrate. The ALJ gave little weight to the 

statement stating it was incompatible with the longitudinal record specifically noting exams showing 

no problems in sitting and standing. Tr. 45. This is a sufficient reason germane to this witness for 

rejecting the statement. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005)(Inconsistency 

with medical evidence is a sufficient reason for rejecting lay statement). 

Residual Functional Capacity 

Plaintiff argues that the ALJ erred in failing to consider plaintiffs psychogenic impairments 

in the residual functional capacity assessment. However, as noted above, the ALJ properly 

discounted such impairments . 

. Page 5 - ORDER 

Case 6:14-cv-01657-TC Document 22 Filed 10/05/15 Page 5 of 6
Vocational Testimony 

Plaintiff argues that hypothetical offered to the vocational expert failed to account for all 

limitations and, thus, the vocational expert's opinion is of no value. However, the ALJ properly 

discounted the limitations plaintiff asserts were improperly omitted.2 

Plaintiff also argues that the vocational expert was not qualified to offer an opinion regarding 

the number of jobs available or that, at a minimum, plaintiffs counsel should have been afforded an 

opportunity to cross-examine the expert. However, 

An ALJ may take administrative notice of any reliable job information, including 

information provided by a VE Johnson v. Shalala, 60 F.3d 1428, 1435 (9th 

Cir.1995). A VE's recognized expertise provides the necessary foundation for his or 

her testimony. Thus, no additional foundation is required. 

Bayliss, 427 F.3d at 1218. 

CONCLUSION 

For the reasons stated above, the decision of the Commissioner is affirmed. 

('"'..-{-

DATED this_~ __ day of October 2015. 

2

Plaintiff also asserts that the ALJ failed to find a lifting limitation of ten pounds, but 

included such limitation to the vocational expert. At best, plaintiff found a typo in the RFC 

discussion and does not demonstrate that the ALJ erred in asserting a ten pound limitation. 

Page 6 - ORDER 

Case 6:14-cv-01657-TC Document 22 Filed 10/05/15 Page 6 of 6