IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DENNIS M. GOUDIE, 6:15-CV-00381-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

RICHARD F. MCGINTY

McGinty & Belcher, PC

P.O. Box 12806

Salem, OR 9730

(503) 371-9636 

Attorney 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-00381-BR Document 20 Filed 07/05/16 Page 1 of 17
DAVID MORADO

Regional Chief Counsel

LISA GOLDOFTAS 

Special Assistant United States Attorney

Social Security Administration

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

Seattle, WA 98104

(206) 615-2950

Attorneys for Defendant

BROWN, Judge.

Plaintiff Dennis M. Goudie seeks judicial review of a final

decision of the Commissioner of the Social Security

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

for Disability Insurance Benefits (DIB) under Title II 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 DIB on November 3, 2011,

alleging a disability onset date of April 21, 2010. Tr. 126.1

The application was denied initially and on reconsideration. An

Administrative Law Judge (ALJ) held a hearing on August 9, 2013. 

Tr. 28-70. At the hearing Plaintiff was represented by a “non1

 Citations to the official transcript of record filed by

the Commissioner on November 23, 2015, are referred to as "Tr."

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attorney representative.” Plaintiff and a vocational expert (VE)

testified at the hearing. 

The ALJ issued a decision on September 27, 2013, in which

she found Plaintiff was not disabled before his March 31, 2014,

date last insured and, therefore, is not entitled to benefits. 

Tr. 13-27. Pursuant to 20 C.F.R. § 404.984(d), that decision

became the final decision of the Commissioner on January 6, 2015,

when the Appeals Council denied Plaintiff's request for review. 

Tr. 1-5. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000). 

BACKGROUND

Plaintiff was born August 17, 1974, and was 38 years old at

the time of the hearing. Tr. 126. Plaintiff completed high

school. Tr. 160. Plaintiff has past relevant work experience as

a maintenance assistant. Tr. 23. 

Plaintiff alleges disability due to migraine headaches,

right-shoulder issues, and knee and back pain. Tr. 81. 

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

summary of the medical evidence. After carefully reviewing the

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

medical evidence. See Tr. 20-22.

STANDARDS

The initial burden of proof rests on the claimant to

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

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

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

(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

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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. § 404.1520. Each step is potentially

dispositive. 

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 404.1520(a)(4)(I). 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

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determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii). 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 the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R. 

§ 404.1520(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 his limitations. 20 C.F.R.

§ 404.1520(e). 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

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

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Commissioner determines the claimant retains the RFC to perform

work he has done in the past. 20 C.F.R. § 404.1520(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. § 404.1520(a)(4)(v). See also

Keyser, 648 F.3d at 724-25. 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. § 404.1520(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since his April 21, 2010, alleged

onset date. Tr. 18. The ALJ, however, noted Plaintiff applied

for and received “extensive unemployment benefits” during the

relevant period, which “bears negatively on the issue of

[Plaintiff’s] credibility.” Tr. 18. 

At Step Two the ALJ found Plaintiff has the severe

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impairments of migraines, “status post right knee surgery,” and

“recurrent right shoulder dislocations.” Tr. 18. The ALJ found

Plaintiff’s impairments of Irritable Bowel Syndrome (IBS),

allergic rhinitis, and “exercise-induced asthma” are nonsevere. 

Tr. 18. 

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or medically equal one of

the listed impairments in 20 C.F.R. part 404, subpart P, 

appendix 1. Tr. 19. The ALJ found Plaintiff has the RFC to

perform light work. The ALJ also found Plaintiff could

frequently “engage in push or pull and foot control operation

with his right side,” balance, and reach overhead with his right

arm; occasionally climb ramps or stairs and stoop, kneel, crouch,

or crawl; should never climb ladders, ropes, or scaffolds; and

“should avoid concentrated exposure to irritants such as fumes,

odors, dust, gases, . . . poorly ventilated areas . . .[,]

hazardous machinery, operational control of moving machinery, and

unprotected heights.” Tr. 19. The ALJ found Plaintiff “would

consistently be absent from work no more than one day per month.” 

Tr. 19 

At Step Four the ALJ found Plaintiff cannot perform his past

relevant work. Tr. 23. 

At Step Five the ALJ found Plaintiff can perform jobs that

exist in significant numbers in the national economy. Tr. 23. 

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Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION

Plaintiff contends the ALJ erred when she (1) improperly

rejected Plaintiff’s testimony; (2) improperly rejected laywitness statements; and (3) failed to include all of Plaintiff’s

functional limitations in his evaluation of Plaintiff's RFC.

I. The ALJ did not err when she partially rejected Plaintiff’s

testimony.

Plaintiff alleges the ALJ erred by failing to provide clear

and convincing reasons for partially rejecting Plaintiff's

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 he 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

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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 he had suffered migraine

headaches since the late 1990s. Plaintiff stated he had attended

Lane Community College in 2005, but he had to drop out of school

to care for his child when his child-care costs got too high (he

was a divorced single parent). Plaintiff testified he was laid

off from his job “close to” his April 21, 2010, onset date and

was told it was “for economical reasons.” Tr. 37. Plaintiff

testified he believed he was laid off due to his headaches

because he had been reprimanded by his employer and two people

less senior than him “took over [his] department when [he] left.” 

Tr. 37. Plaintiff testified he had been absent and leaving work

early during the period before he was laid off. Plaintiff noted

his migraines had become more frequent in the eight months before

he was let go, and they were happening “anywhere from two to

three times a week, up to five to six” times per week. Tr. 39. 

As a result, he was missing work three or four days a week. 

Tr. 42. Plaintiff stated the medications he takes for migraine

pain “take the edge off,” and the antinausea medication works

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“really well.” Tr. 40. Plaintiff, however, noted his pain

medication “doesn’t actually kill” the migraine pain. Tr. 40. 

The medication “was working really great” when it was first

prescribed, but it no longer works as well.

The ALJ noted at the hearing that Plaintiff received

unemployment insurance from the fourth quarter of 2010 through

the fourth quarter of 2011. Even though a person must be looking

for work to receive unemployment insurance, Plaintiff testified

initially that he was not looking for work during that time. 

Tr. 45. After the ALJ questioned him about unemployment

insurance, however, Plaintiff testified he had looked for work

“as customer service, or maintenance, or electronic repair” while

he received unemployment insurance. Tr. 47. Plaintiff also

testified he believed he could have done that kind of work as

long as he was not suffering from a migraine. Tr. 47. Plaintiff

stated he stopped receiving unemployment insurance in the fourth

quarter of 2011 because he “ran out of extensions.” Tr. 47.

Plaintiff testified his doctors had tried prescribing

different medications over the last 20 years in an attempt to

give him some kind of relief from migraines. Plaintiff stated he

had “tried probably close to 40 different combinations of

medications over the last 20 years” without success. 

Plaintiff testified even after his migraines subside, he

suffers a “low-level headache” all day. He “can deal with the

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headache,” but the migraines are debilitating. Plaintiff

testified he would consider “a success, as far as [his] headaches

go” to be “eliminating them down to once to twice a week” or

ideally three times per month. Tr. 55.

The ALJ found Plaintiff’s “medically determinable

impairments could reasonably be expected to cause some of the

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

intensity, persistence and limiting effects of [his] symptoms are

not entirely credible.” Tr. 20. The ALJ noted the record

indicated only three visits by Plaintiff to the emergency room: 

two in 2009 and one in 2012. The ALJ also noted even though

Plaintiff testified he missed three or four days of work per week

due to migraines in the months before he was laid off from his

job in April 2010, the record contains only one reference to

Plaintiff’s condition interfering with work in that period. 

Specifically, in March 2012 Plaintiff reported he was suffering

daily headaches when his doctor diagnosed him with analgesic

rebound in addition to migraines and changed his medication to

oxycodone. Tr. 336. In April 2012 Plaintiff reported oxycodone

stopped his migraines and his “headache remains gone x 36 hours.” 

Tr. 333. In September 2012 Plaintiff reported to his doctor that

the oxycodone was not working as effectively to reduce his pain. 

Tr. 429. John Roberts, M.D., treating physician, noted in

October 2012, however, that the frequency of Plaintiff’s

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migraines decreased and the efficacy of oxycodone increased

“following treatment of possible chronic sinusitis and increase

in valproic acid dose.” Tr. 428. In March 2013 Plaintiff

reported having migraines every other day. Tr. 417. In April

2013 Plaintiff reported “he is satisfied with current level of

pain control” and with his current medications. Tr. 416. The

ALJ noted there is not any indication in the record that

Plaintiff has tried 40 combinations of medication to control his

migraines.

The ALJ also noted Plaintiff reported to medical staff in

2010 that he had been “laid off due to staffing cut backs - due

to the declining economy.” Tr. 249. Plaintiff did not indicate

he believed he was, in fact, laid off because of his migraines or

absences due to migraines.

The ALJ also pointed out that Plaintiff testified initially

that he did not look for work after he was laid off “around”

April 2010, but he “later changed his testimony to say that he

did try to find a job when [the ALJ] asked him about his receipt

of unemployment insurance for an extended period.” Tr. 22. 

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 not entirely

credible as to the limiting effects of his impairments. The

Court, therefore, concludes the ALJ did not err when she rejected

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Plaintiff's testimony in part.

II. The ALJ did not err when she partially rejected the

statement of Plaintiff’s wife, Kimberly Goudie.

On December 5, 2011, Plaintiff’s wife completed a thirdparty adult function report in which she indicated she has known

Plaintiff since 2005. Kimberly Goudie stated Plaintiff’s

migraines are debilitating. “When one comes on he is either in

the bathroom vomiting [or] laying in bed with no lights, cold

packs over his head just trying to get the pain to stop.” 

Tr. 150. Kimberly Goudie noted Plaintiff “gets the kids up,”

does “some chores around the home,” helps to make dinner, helps

the children with their homework, helps to care for the children,

and helps to “manage a diabetic step-son to make sure [he] keeps

in check with his A1C.” Tr. 151. Kimberly Goudie stated

Plaintiff is “so tired after having a migraine all day [that] he

just can’t think about taking medication.” Tr. 152. Kimberly

Goudie noted Plaintiff’s hobbies include darts, pool, hunting,

and watching television. Plaintiff goes out to play darts once a

week and gets together with friends once a month, Tr. 154. 

Kimberly Goudie noted Plaintiff’s migraines had become worse and

more frequent since the time she met him in 2005. Tr. 157.

Lay testimony regarding a claimant's symptoms is competent

evidence that the ALJ must consider unless she "expressly

determines to disregard such testimony and gives reasons germane

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

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(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 found Kimberly Goudie’s statement was not “entirely

credible” regarding the intensity, persistence, and limiting

effects of Plaintiff’s symptoms for the same reasons that the ALJ

found Plaintiff’s testimony was only partially credible.

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

when he partially rejected Kimberly Goudie’s statement because

the ALJ provided specific reasons germane to the witness for

doing so. The Ninth Circuit held in Molina that when “the ALJ

gives germane reasons for rejecting testimony by one witness, the

ALJ need only point to those reasons when rejecting similar

testimony by a different witness.” 674 F.3d at 1114. See also

Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.

2009) (because “the ALJ provided clear and convincing reasons for

rejecting Plaintiff’s own subjective complaints, and because [the

lay witness’s] testimony was similar to such complaints, it

follows that the ALJ also gave germane reasons for rejecting [the

lay witness’s] testimony’”). In Valentine the Court noted 

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Mrs. Valentine’s testimony about her husband’s fatigue was

similar to her husband’s subjective complaints. “Unsurprisingly,

the ALJ rejected this evidence based, at least in part, on ‘the

same reasons [she] discounted Plaintiff’s allegations.’” Id.

Here this Court has concluded the ALJ provided clear and

convincing reasons for rejecting Plaintiff’s testimony in part

and, for similar reasons, concludes the ALJ gave germane reasons

for rejecting Kimberly Goudie’s statement. 

Accordingly, the Court concludes the ALJ did not err when

she partially rejected Kimberly Goudie’s statement because the

ALJ gave legally sufficient reasons for doing so.

III. The ALJ did not err at Step Three.

Plaintiff asserts the ALJ erred at Step Three when she

assessed Plaintiff’s RFC because she did not consider all of

Plaintiff’s limitations as set out by Plaintiff and Kimberly

Goudie. Because the Court has found the ALJ properly rejected in

part Plaintiff's testimony and Kimberly Goudie’s statements, the

Court concludes the ALJ did not err at Step Three when she did

not include all of the limitations reported by Plaintiff and

Kimberly Goudie in her assessment of Plaintiff's RFC.

Accordingly, the Court concludes the ALJ did not err at Step

Three.

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CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 5th day of July, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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