IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JANET ANN BRUNETTA, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Commissioner of Social Security, 

Defendant. 

ACOSTA, Magistrate Judge: 

MEDFORD DIVISION 

Case No.: 1:15-CV-00873-AC 

OPINION AND ORDER 

Janet Ann Brunetta ("plaintiff') seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration ("Commissioner") denying her application for 

Disability Insurance Benefits ("DIB"). Because the Commissioner's decision is supported by 

substantial evidence, her decision is AFFIRMED. 

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Case 1:15-cv-00873-AC Document 26 Filed 01/31/17 Page 1 of 16
Procedural Background 

Plaintiff filed her application for DIB on July 22, 2011, alleging disability as of July 22, 

2011. (Tr. 168-77.) The Commissioner denied her application initially and upon reconsideration, 

and she requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 88-92, 99-102, 103-

04.) An administrative hearing was held on September 12, 2013. (Tr. 31-66.) After the hearing, 

the ALJ issued an unfavorable decision on September 19, 2013, finding plaintiff not disabled. (Tr. 

14-27.) The Appeals Council denied plaintiffs subsequent request for review, making the ALJ's 

decision final. (Tr. 1-3.) This appeal followed. Plaintiff argues that the ALJ ened by: (1) failing 

to find her depression severe at step two of his analysis; (2) improperly rejecting the medical opinion 

of Dr. Brian J. Mateja; and (3) failing to provide a clear and convincing reason to reject her 

subjective symptom testimony. 

Factual Background 

Born in Januaiy 1952, plaintiff was 61 years old at the time of the hearing. (Tr. 168.) She 

speaks English and her highest level of education is one year of college. (Tr. 192, 194.) She stopped 

working in September 2011 due to her conditions and other reasons, which she described as her 

employer having financial difficulties. (Tr. 193.) Plaintiff alleges disability due to depression, 

fibromyalgia, chronic fatigue, sleep apnea, low white blood count, vitamin D deficiency, and 

hormone imbalance. (Id.) 

Standard of Review 

The court must affirm the Commissioner's decision ifit is based on proper legal standards 

and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F .2d 

498, 501 (9th Cir. 1989). Substantial evidence is "more than amere scintilla. It means suchrelevai1t 

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evidence as a reasonable mind might accept as adequate to suppo1i a conclusion." Richardson v. 

Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NL.R.B., 305 U.S. 197, 229 

(1938)). The comi must weigh "both the evidence that supports and detracts from the 

[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where 

the evidence as a whole can supp01i either a grant or a denial, [a court] may not substitute [its] 

judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation 

omitted). 

The initial burden of proofrests upon the claimant to establish disability. Howardv. Heckler, 

782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an 

"inability to engage in any substantial gainful activity by reason of any medically determinable 

physical or mental impairment which can be expected ... to last for a continuous period of not less 

than 12 months." 42 U.S.C. § 423(d)(l)(A). 

The Commissioner has established a five-step sequential process for detennining whether 

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a). First, 

the Connnissioner determines whether a claimant is engaged in "substantial gainful activity"; if so, 

the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). 

At step two, the Commissioner determines whether the claimant has a "medically severe impairment 

or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c). If not, the 

claimant is not disabled. Yuckert, 482 U.S. at 141. 

At step three, the Commissioner determines whether the impairment meets or equals "one 

of a number of listed impairments that the Secretary acknowledges are so severe as to preclude 

substantial gainful activity." Id; 20 C.F.R. § 404.1520(d). If so, the claimant is conclusively 

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presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. 

At step four, the Commissioner determines whether the claimant can still perform "past relevant 

work." Yuckert, 482 U.S. at 141; 20 C.F.R. § 404.1520(e). If the claimant can work, she is not 

disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 

482 U.S. at 141. At step five, the Commissioner must establish that the claimant can perform other 

work. Id at 142; 20 C.F.R. § 404.1520(e) & (f). If the Commissioner meets this burden and proves 

that the claimant is able to perform other work which exists in the national economy, she is not 

disabled. 20 C.F.R. § 404.1566. 

The ALJ's Findings 

The ALJ performed the sequential analysis. At step one, he found that plaintiff had not 

engaged in substantial gainful activity since her alleged onset date. (Tr. 16.) At step two, the ALJ 

concluded that plaintiff had the following severe impairments: fibromyalgia; sleep apnea; and 

obesity. (Tr. 16-21.) At step three, the ALJ determined that plaintiff did not have an impairment 

or combination of impairments that met or medically equaled a listed impairment. (Tr. 21.) 

The ALJ next assessed plaintiffs residual functional capacity ("RFC") and found that plaintiff has 

the RFC to "perform sedentary work ... with the following non-exertional limitations: the claimant 

should avoid all exposure to pulmonary irritants and is limited to occasional postural activities with 

the exception of no climbing of ladders, ropes or scaffolds." (Tr. 21-26.) At step four, the ALJ 

found that plaintiff was capable of performing her past relevant work as a bookkeeper and business 

manager. (Tr. 26-27.) The ALJ therefore concluded plaintiff was not disabled. (Tr. 27.) The ALJ 

did not proceed to step five. 

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Case 1:15-cv-00873-AC Document 26 Filed 01/31/17 Page 4 of 16
Discussion 

L Plaintiffs Depression at Step Two. 

Plaintiff argues the ALJ erred at step two by failing to find her depression was a severe 

impairment. (Pl.' s Opening Br. 9-13, Pl.' s Reply Br. 1-8.) Specifically, plaintiff aTgues the ALJ did 

not recount the medical evidence accurately and confused "minimal cognitive findings with minimal 

depression." (Pl.'s Opening Br. 11.) 

A. The ALJ's summary of the evidence. 

At step two, the ALJ considers whether a claimant has a severe medically determinable 

physical or mental impairment, or combination of impairments. 20 C.F .R. § 404.1520( a)( 4 )(ii). A 

claimant's impairment or combination of impairments is not severe ifit does not significantly limit 

his or her physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 

404.1521. Basic work activities are 

the abilities and aptitudes necessary to do most jobs. Examples of these include -

( 1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, 

carrying, or handling; 

(2) Capacities for seeing, hearing, and speaking; 

(3) Understanding, canying out, and remembering simple instructions; 

(4) Use of judgment; 

(5) Responding appropriately to supervision, co-workers and usual work situations; and 

(6) Dealing with changes in a routine work setting. 

20 C.F.R. § 404.152l(b). An impairment is not severe ifit is merely "a slight abnormality (or 

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combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic 

work activities." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing SSR 96-3(p) (1996)). 

Here, the ALJ noted plaintiffs histo1y of depression and mild memory difficulties but overall 

found the medical evidence of record did not support finding either were severe impairments. (Tr. 

19.) First, the ALJ cited treatment records from 2011, 2012, and 2013 which records showed 

plaintiffs mental status examinations were within normal limits with normal mood and affect and 

intact judgment and insight. (Tr. 19, 277, 282, 286, 290, 304.) 1 

Next, the ALJ noted plaintiffs memory loss and confusion in October 2011, but cited an 

examination from that time that showed n01mal mood and appropriate affect. (Tr. 19, 312.) The 

ALJ also cited a December 2012 neuropsychological test performed by Dr. Michael R. Villaneuva 

who found plaintiff showed only "ve1y mild findings" with respect to her episodic mem01y, and 

overall opined that she had "no restrictions from a neurocognitive standpoint." (Tr. 19, 33 5.) Third, 

the ALJ noted that plaintiff testified at the hearing that she had "not sought any consistent treatment 

for her mental health issues since her alleged onset date." (Tr. 20.) Fourth, the ALJ found that 

plaintiffs alleged "brain fog" had not been present for the requisite twelve months, and that no 

treating physician had determined her condition would be debilitating for twelve months or possibly 

result in her death. (Id.) Finally, the ALJ noted that a State Disability Determination Services 

psychological medical consultant who reviewed plaintiffs medical records on July 31, 2012, found 

her mental impairments were "nonsevere." (Tr. 20, 82.) 

Plaintiff argues the ALJ confused "minimal cognitive findings with minimal depression," 

1 This court notes the pages cited by the ALJ were all off by a single page. The page numbers 

listed in this opinion are those pages that contain the information referenced by the ALJ, not the 

page numbers listed by the ALJ in his September 19, 2013 decision. 

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Case 1:15-cv-00873-AC Document 26 Filed 01/31/17 Page 6 of 16
noting that Dr. Villaneuva wrote, "the primary finding from this examination is one of significant 

depression," and two weeks later wrote that plaintiffs depression was not adequately controlled and 

"significant depression can disrupt efficient cognitive functioning." (Pl. 's Opening Br. 11, Tr. 333-

34.) However, the court finds the ALJ reasonably considered plaintiffs medical records and 

concluded her depression was not severe because it did not cause "more than minimal limitations 

in the [plaintiff] 's ability to perform basic mental work activities." (Tr. 20.) Indeed, an independent 

review of the record supports the ALJ's finding. On December 27, 2012, although Dr. Villaneuva 

found plaintiffs depression "does not seem to be under good control," he overall wrote she had "no 

restrictions/limitations from a neurocognitive standpoint." (Tr. 334.) Additionally, in reports from 

December 27, 2012, and January 14, 2013, Dr. Villaneuva found plaintiff had only "mild 

weaknesses" in episodic memo1y. (Id.) Finally, on March 6, 2013, Dr. Brian J. Mateja noted that 

plaintiffs depression symptoms "have gotten some better." (Tr. 351.) While variable interpretations 

of this evidence may exist, the ALJ' s analysis was reasonable such that it must be upheld. Batson 

v. Comm 'r, 359 F.3d 1190, 1198 (9th Cir. 2004). Additionally, any alleged enoris harmless because 

the ALJ found plaintiff had other severe impairments at step two and continued with the sequential 

analysis. (Tr. 16-27, see Stoutv. Comm 'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006)(an 

ALJ's mistake is harmless where it is nonprejudicial to the claimant.) 

The ALJ' s decision is upheld as to this issue. 

B. The opinion of Dr. Mateja. 

Next, plaintiff argues the ALJ failed to give a legally sufficient reason to reject the opinion 

of treating physician Dr. Brian J. Mateja. (Pl.'s Opening Br. 13-16, Pl.'s Reply Br. 8-11.) 

Specifically, plaintiff argues the reasons the ALJ cited for discrediting Dr. Mateja's August 12, 2013 

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Case 1:15-cv-00873-AC Document 26 Filed 01/31/17 Page 7 of 16
medical source statement show the ALJ misunderstands the symptoms of fibromyalgia. (Pl.' s 

Opening Br. 14-15, Pl.'s Reply Br. 10.) 

An ALJ may reject the uncontradicted medical opinion of a treating or examining physician 

only for "clear and convincing" reasons supported by substantial evidence in the record. Bayliss v. 

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chafer, 81 F.3d 821, 830-31 (9th 

Cir. 1995)). An ALJ may reject the contradicted opinion of a treating or examining doctor by 

providing "specific and legitimate reasons that are supported by substantial evidence." Id. 

On August 12, 2013, Dr. Mateja completed a Fibromyalgia Medical Source Statement where 

he opined that plaintiff suffered from fibromyalgia and had the following symptoms: "multiple 

tender points, nonrestorative sleep, chronic fatigue, morning stiffness, muscle weakness, 

breathlessness, anxiety, panic attacks and depression." (Tr. 340.) Overall he described plaintiffs 

work limitations included only being able to sit for 30 minutes at one time, stand for one hour at one 

time, that she could sit about two hours in an eight-hour workday, could stand/walk about four hours 

in an eight-hour workday, and every few hours she would need unscheduled five-to-ten-minute 

breaks. (Tr. 341-42.) Finally, Dr. Mateja opined plaintiff would be off-task at least 25 percent or 

more of the workday and would be absent from work more than four days per month. (Tr. 343.) 

Here, the ALJ gave"[ n] o significant weight" to Dr. Mateja' s August 12, 2013 report, finding 

that "Dr. Mateja's own treatment records contain no clinical findings or studies to substantiate his 

opinion that the [plaintiff] is disabled due to her fibromyalgia condition." (Tr. 25-26.) First, the ALJ 

noted Dr. Mateja's treatment records from 2013 show plaintiff had a "normal gait, no tenderness to 

palpitation and full range of motion in her extremities." (Tr. 26, 344-59.) Next, the ALJ found 

conflicting evidence in Dr. Mateja's medical reports, noting although he reported in August 2013 

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that plaintiff suffered from severe pain in her lumbosacral spine, cervical spine, thoracic spine and 

chest, his June 2013 treatment notes showed "no tenderness in these areas." (Tr. 26, 359.) Third, 

the ALJ found Dr. Mateja's bi-monthly treatment of plaintiff seemed inconsistent with someone who 

was "allegedly suffering from such severe physical impahments." (Tr. 26.) 

Finally, the ALJ found Dr. Mateja's treatment notes "wholly inconsistent" with plaintiffs 

"benign physical examination findings as noted in the treatment records at Exhibit 1 OF and the 

expert testimony of the medical expert at the hearing." (Tr. 26.) Exhibit 1 OF are medical records 

from plaintiffs treatment with Dr. David Dryland from August 12, 2013 and August 21, 2013. (Tr. 

360-69.) Dr. Dryland's treatment records from August 12, 2013 indicate that on physical 

examination of plaintiff he found she had a normal gait, that all joints had good stability, range of 

motion and strength except her cervical spine which had mild decreased range of motion and was 

"not that tender on exam." (Tr. 362.) Additionally, Dr. Dryland noted that plaintiff had "18/18 1/2+ 

fibro tender points, real mild." (Id.) Overall he diagnosed plaintiff with "[l]ikely evolving 

fibromyalgia, but not definite." (Tr. 363.) 

The ALJ was required to give a specific and legitimate reason for discrediting Dr. Mateja's 

opinion because it was inconsistent with the opinion of Dr. Dryland who found plaintiffs symptoms 

"overall don't make sense but fibro most likely." (Tr. 363.) See Bayliss v. Barnhart, 427 F.3d 

1211, 1216 (9th Cir. 2005) (the contradicted opinion of a treating or examining physician can be 

rejected with specific and legitimate reasons that are supported by substantial evidence.) As the ALJ 

denoted, although plaintiff suffered from the severe impairment of fibromyalgia, Dr. Mateja's 

treatment records showed inconsistencies both within his own notes and with the medical treatment 

notes of Dr. Dryland. Indeed, although plaintiff complained of severe pain in her spine and chest, 

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Case 1:15-cv-00873-AC Document 26 Filed 01/31/17 Page 9 of 16
Dr. Mateja found "no tenderness in these areas" upon physical examination. (Tr. 359.) Additionally, 

the ALJ noted that Dr. Dryland's examination of plaintiff showed a "benign physical examination" 

with only "real mild" fibromyalgia tender points. (Tr. 362-63 .) See Tommasetti v. Astrue, 533 F.3d 

!035, I 041 (9th Cir. 2008) (an ALJ may reject physician's opinion when the opinion conflicts with 

physician's own treatment notes). 

Plaintiff argues the ALJ misunderstands fibromyalgia, but this court finds plaintiffs 

argument unpersuasive. Fibromyalgia is a rheumatic disease that causes inflammation of the fibrous 

connective tissue components of muscles, tendons, ligaments and other tissue. Benecke v. Barnhart, 

379 F.3d 587, 589 (9th Cir. 2004). The disease is diagnosed entirely on the basis of patients' reports 

of pain and other symptoms; there are no laboratory tests to confinn the diagnosis. Benecke, 379 

F.3d at 590. Here, the ALJ acknowledged plaintiffs fibromyalgia was a severe impairment, yet 

discredited only the overall limitations Dr. Mateja opined plaintiff would have because of this 

impairment. See 20 C.F.R. § 404.1527(e)(l) (the law reserves the disability determination to the 

Commissioner.) Overall, this court finds the ALJ provided a specific and legitimate reason for 

discrediting the opinion of Dr. Mateja with respect to plaintiffs fibromyalgia limitations. There is 

no error. 

C. Plaintiff's symptom testimony. 

Finally, plaintiff argues the ALJ failed to provide a clear and convincing reason to reject her 

symptom testimony. (Pl. 's Opening Br. 16-18, Pl.'s Reply Br. 11-12.) Again, plaintiff argues the 

reasons the ALJ used to discredit plaintiffs symptom show the ALJ has a "misunderstanding of 

fibromyalgia." (Pl.'s Opening Brief 16-18.) 

If "there is no affirmative evidence of malingering, 'the ALJ can reject the claimant's 

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testimony about the severity ofher symptoms only by offering specific, clear and convincing reasons 

for doing so."' Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. 

Chafer, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). A general assertion that the claimant is not 

credible is insufficient; the ALJ must "state which ... testimony is not credible and what evidence 

suggests the complaints are not credible." Dodrill v. Shala la, 12 F.3d 915, 918 (9th Cir. 1993). The 

reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the 

ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th 

Cir. 1995) (internal citation omitted). 

Examples of clear and convincing reasons include conflicting medical evidence, effective 

medical treatment, medical noncompliance, inconsistencies either in the claimant's testimony or 

between her testimony and her conduct, daily activities inconsistent with the alleged symptoms, a 

sparse work histmy, testimony that is vague or less than candid, and testimony from physicians and 

third parties about the nature, severity and effect of the symptoms complained of. Tommasetti, 533 

F.3d at 1040; Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light v. Social Sec. 

Admin., 119 F.3d 789, 792 (9th Cir. 1997). 

The ALJ found plaintiffs statements concerning the "intensity, persistence and limiting 

effects of [her] symptoms [were] not credible" for the following reasons: (I) there was a lack of 

medical evidence to support her alleged limitations; (2) she left her previous employment for reasons 

other than her disability; (3) her treatment was inconsistent with her alleged disabling pain and 

fatigue; and (4) her activities of daily living were inconsistent with her underlying allegations of 

disability. (Tr. 23-24.) This court addresses each reason in tum. 

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1. Lack of medical evidence. 

First, the ALJ discredited plaintiff because he found "the documentary evidence of record 

and the [plaintiff]' s own statements and testimony simply do not support her basic claims" citing 

medical records related to plaintiffs fibromyalgia, sleep apnea, and obesity. (Tr. 23.) With respect 

to plaintiffs fibromyalgia, the ALJ noted although plaintiff complained of"chronic fatigue and pain" 

her diagnostic test results were "generally umemarkable and contain little evidence to support her 

alleged symptoms." (Tr. 23.) The ALJ specifically noted Dr. Dry land's treatment notes from August 

2013 where on physical examination of plaintiff he found she had only "mild" fibromyalgia tender 

points. (Tr. 23, 362.) Dr. Dry land also found that plaintiffs upper and lower extremities had "good 

stability, range of motion and strength, with no effusions, warmth or tenderness" except for her 

cervical spine, which he found had a decreased range of motion but was "not bad, not that tender on 

exam." (Tr. 23, 362.) Finally, the ALJ found plaintiffs various pain locations were treated 

conservatively and surgery had never been recommended. (Tr. 23.) 

Next, with respect to plaintiffs sleep apnea the ALJ noted a September 24, 2011 sleep study 

"revealed only 'mild' obstructive sleep apnea." (Tr. 23, 299-302.) The ALJ also wrote that in May 

2012 plaintiff"reported her daytime sleepiness and fatigue was much better since she staiied using 

her CPAP," that she was sleeping eight hours a night, not having trouble falling or staying asleep, 

and felt energized during the day. (Tr. 23, 330.) Additionally, the ALJ found that, other than Dr. 

Mateja, no other treating physician reported any disabling limitations due to plaintiffs fibromyalgia 

or sleep apnea, or "ever identified any significant functional loss with respect to the [plaintiff]' s 

physical impairments." (Tr. 23.) In making these findings the ALJ noted the reports of the State 

agency physical medical consultant who reviewed plaintiffs records on August 1, 2012 and 

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determined she was capable of performing "essentially light level work, with some postural and 

environmental limitations" and Dr. Reuben Beezy, the physical medical expert, who opined plaintiff 

could perform sedentary level work with some postural and environmental limitations" at the 

September 12, 2013 ALJ hearing. (Tr. 23, 38-39, 78-87.) 

Finally, with respect to her obesity, the ALJ noted treatment records from 2011 to 2013 

which showed plaintiff had a "normal gait and station, with full strength and range of motion in her 

upper and lower extremities." (Tr. 23-24, 280, 360.) Additionally, the ALJ found plaintiff denied 

chest pain, shortness of breath, chest tightness, headache or dizziness, and "reported the ability to 

do laundry, prepare meals, go shopping and care for her pets" which the ALJ determined 

"demonstrat[ed] a good ability to stand, walk, sit, reach, lift and cany." (Tr. 24, 202-09, 289, 338.) 

Finally the ALJ noted that no treating or examining physicians repmied any disabling limitations due 

to her obesity. (Tr. 24.) 

Plaintiff argues the ALJ misunderstands fibromyalgia, and thus the reasons cited by the ALJ 

for rejecting her symptom testimony are not clear and convincing. (Pl.'s Opening Br. 16-17, Pl.'s 

Reply Br. 11.) The court rejects plaintiffs argument. Here, the ALJ did not reject the existence of 

plaintiffs fibromyalgia: he found it was a severe impairment at step two, but merely rejected the 

severity of plaintiffs fibromyalgia symptoms. Indeed, although plaintiff complained of fibromyalgia 

pain and of problems with concentration, the record shows doctors overall found plaintiff had a good 

range of motion, strength, and stability, had no restrictions or limitations from a neurocognitive 

standpoint, and was capable oflow stress or sedentruy work. (See Tr. 335, 340, 360 which include 

Dr. Villaneuva's December 27, 2012 medical repmi, Dr. Mateja's August 12, 2013 medical report, 

and Dr. Dryland's August 12, 2013 medical report, respectively.) "Although lack of medical 

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Case 1:15-cv-00873-AC Document 26 Filed 01/31/17 Page 13 of 16
evidence cannot form the sole basis for discrediting pain testimony, it is a factor that the ALJ can 

considerinhis credibility analysis." Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Although 

plaintiffs sleep apnea, although mild, and initially well controlled continued to be an issue for her 

throughout 2013, this error is harmless because the ALJ provided other clear and convincing reason 

for discrediting plaintiffs symptom testimony. See Stout v. Comm 'r Soc. Sec. Admin., 454 F.3d 

1050, 1055 (9th Cir. 2006.) (An ALJ's error is harmless where it is "inconsequential to the ultimate 

nondisability determination.") Therefore, the lack of medical evidence supporting plaintiffs 

symptoms is a clear and convincing reason for discrediting her symptom testimony. 

2. Leaving her job for reasons urn·elated to disability. 

Next, the ALJ found plaintifflostherjob as a bookkeeperin September 2011 because oflack 

of work, and not her disability, noting it was a "business-related layoff." (Tr. 24, 337.) Indeed, 

although plaintiff testified that she lost her job because of a combination of lack of work and 

reaching a mutual agreement with her manager that "it was time for [her] to step down," the record 

reflects that she specifically told Dr. Villaneuva on December 17, 2012, that she was laid off work 

"because oflack of business, not because of her symptoms." (Tr. 33 7 .) Additionally, in a disability 

report from October 11, 2011, she reported she stopped working because of both her disability and 

for other reasons, which she described as her"[ e ]mployers were having financial issues." (Tr. 193.) 

This is a second clear and convincing reason for rejecting plaintiffs symptom testimony. 

3. Sporadic medical treatment. 

Next, the ALJ found although plaintiff complained of disabling pain since June 22, 2011, she 

has not sought any consistent medical treatment, overall noting that her treatment was "sporadic at 

best" and that she only sought treatment once during the 2012 calendar year. (Tr. 24, 326-32.) 

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Additionally, he noted that plaintiff testified to not seeking "any mental health treatment since her 

alleged onset date." (Tr. 24, emphasis in original.) Plaintiff argues that the number of visits does 

not indicate the severity of the disease and there was no notation in the record that plaintiff missed 

appointments. (Pl.'s Opening Br. 16.) Although nothing in the record indicates plaintiff was noncompliant with her treatment, an ALJ can use the lack of consistent medical treatment to discount 

a plaintiffs symptom testimony. See Burch, 400 F.3d at 681 (lack of consistent medical treatment 

can be considered in discrediting claimant's symptom testimony). Indeed, plaintiffs medical records 

show she had only three medical visits in 2012, one with Dr. Carlos Marchini to assess her sleep 

apnea, and two with Dr. Villaneuva for an evaluation of her memmy difficulties. (Tr. 330, 334-39 .) 

The ALJ's finding that her lack of medical treatment is inconsistent with her complaints is 

reasonable such that the ALJ's finding regarding plaintiffs credibility is upheld. 

4. Activities of daily living. 

Finally, the ALJ found plaintiffs activities of daily living were inconsistent with her 

allegations of disability. (Tr. 24.) First, the ALJ noted that although plaintiff claimed she was 

unable to sit for more than a few minutes due to severe pain she testified to taking a road trip with 

her husband just three weeks before the hearing, suggesting "a good ability to sit for prolonged 

periods." (Id.) Next, the ALJ found that plaintiff reported being able to perform daily tasks, do 

laund1y, cook, and go shopping, thus "demonstrating a good ability to stand walk, reach, lift, and 

carry." (Id.) Finally, the ALJ noted that her repmis of needing to take multiple naps during the day 

was inconsistent with her own reports to her treating provider in May 2012 that she was "feeling 

energized during the day and only took naps on a 'seldom' basis" and reported being able to sleep 

eight hours a night and having no problems falling or staying asleep. (Tr. 24. 329). 

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The record supports one of the ALJ' s findings, but not the others. First, with respect to the 

ALJ's finding that plaintiffs ability to take a road trip showed she has a "good ability to sit for 

prolonged periods," her testimony at the September hearing was that she would nap in the back of 

the motor home while her husband drove and not that she was sitting for prolonged periods of time. 

(Tr. 65.) Second, the record reflects plaintiff could still go groce1y shopping, did the laundry, and 

would clean the house. (Tr. 50, 61-62, 205, 225.) Third, although plaintiffs obstructive sleep apnea 

and fatigue were initially well controlled, the record reflects that her fatigue continued to be an issue 

for her through 2013. (Tr. 53-55, 202-09, 314, 330-31, 345, 360-61.) Although two of the activities 

of daily living the ALJ cited as inconsistent were not, the ALJ did find plaintiffs activities of daily 

living inconsistent with plaintiffs overall complaints of severe pain. Additionally, despite the errors 

in this pmi of the ALJ' s findings, these errors are harmless because the ALJ provided other clear and 

convincing reasons to discredit plaintiffs symptom testimony. See Batson v. Comm 'r, 359 F.3d at 

1197 (the ALJ's overall credibility decision may be upheld even if not all of the ALJ's reasons for 

rejecting the claimant's testimony are upheld). 

In sum, the ALJ provided a clear and convincing reason for discrediting plaintiffs symptom 

testimony concerning the severity of her symptoms. The court finds no en-or. 

Conclusion 

The Commissioner's decision is AFFIRMED and this case is DISMISSED. 

IT IS SO ORDERED£/--

DATED this c!)/ day of Ja uar , 

States Magistrate Judge 

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