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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

HEATHER J. JACOBSON, No. 6: 15-cv-00252-CL 

Plaintiff, 

OPINION AND ORDER 

v. 

COMMISSIONER, 

SOCIAL SECURITY ADMINISTRATION, 

Defendant. 

MARK D. CLARKE, Magistrate Judge. 

Plaintiff Heather J. Jacobson ("Plaintiff') seeks judicial review of the final decision of the 

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

Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("SSA"). This 

court has jurisdiction under42 U.S.C. §§ 405(g)and 1383(c). Because the Commissioner's decision 

is supported by substantial evidence, that decision is affirmed and this matter is dismissed. 

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BACKGROUND 

Plaintiff was born on May 12, 1983, and was 25 years old when she filed her application. 

Tr. 28. She has a high school education, and has worked as a resident assistant in a nursing home, 

cashier and pump attendant at a gas station, and telemarketer. Tr. 233. 

Plaintiff protectively filed an application for disability benefits on January 30, 2009, alleging 

disability due to "heart and mental health problems, hepatitis C." Tr. 244. The Commissioner 

denied her application initially and upon reconsideration. At Plaintiffs request, a hearing was held 

before an Administrative Law Judge ("ALJ") on June 23, 2011. Tr. 37-70. On July 26, 2011, the 

ALJ found Plaintiff not disabled. Tr. 96-112. The Appeals Council granted Plaintiffs request for 

review, and remanded this matter for a new hearing . Tr. 114-16. A second hearing was held before 

an ALJ on July 9, 2013. Tr. 71-93. On August 7, 2013, the ALJ found Plaintiff not disabled. Tr. 

14-36. The Appeals Council denied Plaintiffs request for review, making the ALJ's decision the 

Commissioner's final decision Tr. 1-4. Plaintiff now seeks judicial review of that decision. 

DISABILITY ANALYSIS 

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)(l)(A). 

"Social Security Regulations set out a five-step sequential process for determining whether an 

applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm 'r Soc. Sec. 

Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. § 416.920(SSI); Bowen v. Yuckert, 

482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4); 

4 l 6.920(a)( 4). The five-step sequential process asks the following series of questions: 

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1. Is the claimant performing "substantial gainful activity?" 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(I). This activity is work involving 

significant mental or physical duties done or intended to be done for pay 

or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing 

substantial gainful activity, the analysis proceeds to step two. 

2. Is the claimant's impairment "severe" under the Commissioner's 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless 

expected to result in death, an impairment is "severe" if it significantly 

limits the claimant's physical or mental ability to do basic work activities. 

20 C.F.R. §§ 404.152l(a); 416.92l(a). This impairment must have lasted 

or must be expected to last for a continuous period of at least 12 months. 

20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe 

impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 

416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis 

proceeds to step three. 

3. Does the claimant's severe impairment "meet or equal" one or more of the 

impairments listed in 20 C.F .R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis proceeds beyond step three. At that 

point, the ALJ must evaluate medical and other relevant evidence to assess 

and determine the claimant's "residual functional capacity" ("RFC"). This 

is an assessment of work-related activities that the claimant may still 

perform on a regular and continuing basis, despite any limitations imposed 

by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 

416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC, 

the analysis proceeds to step four. 

4. Can the claimant perform his or her "past relevant work" with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F .R. 

§§404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform 

his or her past relevant work, the analysis proceeds to step five. 

5. Considering the claimant's RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 

significant numbers in the national economy? If so, then the claimant is 

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c); 

416.960(c). If the claimant cannot perform such work, he or she is 

disabled. Id 

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See also Bustamante v. Massanari, 262. F.3d 949, 954 (9th Cir. 2001). 

The claimant bears the burden of proof at steps one through four. Id at 953; see also 

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The 

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the 

Commissioner must show that the claimant can perform other work that exists in significant numbers 

in the national economy, "taking into consideration the claimant's residual functional 

capacity, age, education, and work experience." Id; see also 20 C.F.R. §§ 404.1566; 416.966 

(describing "work which exists in the national economy"). If the Commissioner fails to meet this 

burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, 

the Commissioner proves that the claimant is able to perform other work existing in significant 

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; 

Tackett, 180 F.3d at 1099. 

THE ALJ'S FINDINGS 

The ALJ applied the sequential process. At step one, the ALJ found Plaintiff has not engaged 

in substantial gainful activity since her application on January 16, 2009. Tr. 19. At step two, the 

ALJ found Plaintiffs affective disorder, alcohol abuse, and episodic syncope were severe 

impairments. Tr. 20. At step three, the ALJ found that Plaintiff did not have an impairment or 

combination of impairments that met or equaled one of the specific impairments listed in the 

regulations. Id 

The ALJ determined that Plaintiff had the RFC to perform a full range of work at all 

exertional levels but with the following nonexertional limitations: she cannot climb ladders, ropes 

or scaffolds, and she should avoid exposure to heights and moving machinery. She should not drive. 

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She can perform simple routine tasks, she should not have contact with the public, but can have 

occasional interaction with coworkers and supervisors. Tr. 22. In reaching his conclusion, the ALJ 

considered Plaintiffs testimony, but found her not fully credible. Tr. 23. At step four, the ALJ 

found Plaintiff was unable to perform her past relevant work. Tr. 28. At step five, the ALJ found 

there were jobs in the national economy Plaintiff can perform, including warehouse checker, 

electronic worker, and production assembler. Tr. 29. Therefore, the ALJ concluded Plaintiff had 

not been under a disability, as defined by the Social Security Act, through August 7, 2013. 

STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if it is based on the proper legal 

standards and the findings are supported by substantial evidence. See 42 U.S.C. § 405(g); see also 

Batson v. Comm'r ofSoc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence" 

means "more than a mere scintilla, but less than a preponderance." Bray v. Comm 'r.. Soc. Sec. 

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009)(quotingAndrews v. Shala/a, 53 F.3d 1035, 1039 (9th 

Cir. 1995)). It means "such relevant evidence as a reasonable person might accept as adequate to 

support a conclusion." Id. 

Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a 

rational reading of the record, and this court may not substitute its judgment for that of the 

Commissioner. Id "However, a reviewing court must consider the entire record as a whole and may 

not affirm simply by isolating a specific quantum of supporting evidence." Orn v. As true, 495 F .3d 

625, 630 (9th Cir. 2007)(quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 

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2006)(intemal quotations omitted)). The rev1ewmg court, however, may not affirm the 

Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d 

at 1226. 

Even where findings are supported by substantial evidence, "the decision should be set aside 

if the proper legal standards were not applied in weighing the evidence and making the decision." 

Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 U.S.C. § 405(g), 

the court has the power to enter, upon the pleadings and transcript record, a judgment affirming, 

modifying, or reversing the decision of the Commissioner, with or without remanding the case for 

a rehearing. 

ADMINISTRATIVE RECORD 

I. Adult Function Report 

Plaintiff completed an Adult Function Report and Pain and Fatigue Questionnaire on April 

25, 2009. Tr. 262-270. She stated that "most mornings" she got up by 7:00 a.m. to get her children 

ready for school. Tr. 262. Sometimes her aunt and uncle help her. "Sometimes I go back to bed and 

sleep until they get home." Id. She works on a computer, folds laundry, and does dishes. She 

goes to bed at midnight although sometimes she cannot sleep and is awake until 2 or 3:00 a.m. 

She cares for her three children, including bathing, feeding, and playing with them. Tr. 263. 

She cares for pets by feeding and watering them. Her aunt and uncle help her with cooking and 

cleaning. Plaintiff has back spasms that make it difficult to relax and to sleep. Bipolar disorder and 

PTSD cause anxiety that prevents sleep. Her aunt helps her wash her hair when she is unable to 

stand in the shower. She has to be reminded to take her medication or she will forget. Tr. 264. She 

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tries to make complete meals every other night, but some days she cannot cook because she is dizzy. 

Tr. 264. 

Plaintiff stated she could do laundry, dishes, mow the lawn, and sweep and mop, although 

"by the time I start mopping I have a hard time moving because my back." Id. She does laundry 

daily. The mowing "takes me a[n] hour or longer I get halfway through and get the shakes have to 

stop and take a break." Ibid Sometimes she has to let someone else finish what she has started. 

She said she goes outside "about every two hours," but sometimes she does not go outside 

at all. Tr. 265. She does not drive. She grocery shops about once a month for about two hours. Her 

hobbies are reading, poetry, basketball, bicycle riding, exercising, swimming, and hiking, and 

although she often reads, she does not engage in the other activities often anymore. When she is 

physically active Plaintiff gets "shaky and faint - my back will spasm and sometimes it's just hard 

to move." Tr. 266. Most of her social contact is by telephone and on the internet. She needs to be 

reminded to make and attend appointments, and she needs someone to go with her to appointments. 

Plaintiff stated she had problems getting along with other people, because "my mouth causes 

problems, very irritable," and she does not socialize because of pain and anxiety. Tr. 267. Her 

conditions affect her ability to lift, squat, bend, stand, walk, sit, see, remember, complete tasks, 

concentrate, understand, follow instructions, and get along with others. Tr. 267. She cannotlift 

more than 15 pounds or walk for more than 30 minutes. She becomes frustrated because she cannot 

understand things as easily as she could before her conditions began. She can walk about four blocks 

before requiring a ten to 15 minute break, and can pay attention for about ten minutes. She has 

trouble following written instructions, and sometimes she has to reread them several times. She can 

follow spoken instructions but "sometimes it has to be repeated because my mind goes blank 

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sometimes when I'm being spoken to." Id. People irritate her, and she does not handle stress or 

changes in routine well. She has nightmares, and wears glasses and an ankle brace. 

Plaintiff has burning sensations, aches, numbness, stinging, and sharp shooting pain in her 

back, right leg, shoulder and head. Tr. 270. The pain is daily in her back and intermittent in her 

shoulders. The pain is caused by playing with her children or doing chores. The pain is worse with 

cleaning, and "sometimes just turning does set it off." Id. Nothing makes the pain better. 

She has experienced fatigue since she was a child, and takes two to three naps daily. Fatigue 

causes her to be inactive, and she is forgetful. She can be active for about two hours and then lies 

down for a couple of hours. 

II. Testimony 

Plaintiff and a vocational expert (VE) testified at the July 2013 hearing. Plaintiff was 

represented by counsel. She testified she last worked in November 2005 in a care facility as a 

resident assistant. Tr. 74-75. Her duties included helping residents with personal care. Plaintiff 

worked at the facility for about a month before she was fired after a urinalysis revealed 

methamphetamine. Tr. 75-76. She has not used methamphetamine since November or December 

of2005. 

Plaintiff has custody of her three children. Tr. 76. The children lived with their father for 

several months in 2005 and 2006. Plaintiff receives state assistance for rent and food stamps. 

Plaintiff has episodes of syncope which cause her to faint. They have decreased in frequency, 

and the last episode was about four months before the July 2013 hearing. Tr. 78. Plaintiff has a 

condition called Vagal Vassar Depressor Syncopy. She will faint if she tips her head back too far, 

and if she squats "when I stand up, I have to have something to hold on or - - within the vicinity, 

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otherwise I will tingle head to toe, and everything will go black, and I will hit the floor. So I've kind 

of learned to control my movements as best as possible." Tr. 79. Plaintiff stated that "[ s ]howers 

are still kind of iffy. If the water is too hot, I will pass out .... " Id. At the time of the hearing 

Plaintiff was taking Topamax and Amitriptyline. Her neurologist took her off her other medications 

due to concern that they were increasing her headaches. Plaintiff said she had a migraine with loss 

of feeling in her right arm, and her neurologist was concerned it was a complicated migraine that 

turned into a min-stroke. Tr. 80. 

Plaintiff has migraines at a "minimum, three times a month." Tr. 81. Some of them last four 

or five days. Tr. 82. Amitriptyline has helped "somewhat" with sleep issues, but Plaintiff still wakes 

in the middle of the night and cannot go back to sleep. Tr. 82. She naps once or twice a day for 

between 45 minutes and an hour and a half. Id. 

Plaintiff testified she has issues arising from bipolar disorder, including difficulty being 

around people. "I don't focus when I'm in a crowd of people. I get edgy, irritable. I get frustrated 

really easy ifl feel overwhelmed." Tr. 83. She is easily frustrated on a daily basis even when she 

is alone. "Ifl take my sunglasses off, I try to remind myself where I put them, and ifl leave the room 

and come back and can't remember, I will tear my room up because I am so irritable and upset at the 

fact that I just took them off and can't remember where I put them .... " Tr. 84. 

She has daily episodes of nearly fainting. These happen at least once a day and as often as 

four or five times a day. Id. The episodes can be caused by "standing too quickly, squatting, 

bending over, tipping my head backwards, turning it from side to side too quickly," and heat. Tr. 

85. She gets dizzy after ten to fifteen minutes on a treadmill. She can bend her head forward for 

about a minute and a half before she gets dizzy. 

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III. Medical Records 

The medical records are extensive, and the parties are familiar with them. Therefore they will 

be set out below when relevant. 

DISCUSSION 

Plaintiff argues that the ALJ erred by ( 1) failing to find anxiety a severe impairment at step 

two; (2) improperly weighing medical evidence; (3) failing to properly consider the limiting effects 

of Plaintiffs impairments; and (4) improperly weighing lay evidence. 

I. Step Two 

At step two, the ALJ determines whether the claimant has a medically severe impairment or 

combination of impairments. Yuckert, 482 U.S. at 140-41. The Social Security Regulations and 

Rulings, as well as case law applying them, discuss the step two severity determination in terms of 

what is "not severe." According to the regulations, "an impairment is not severe if it does not 

significantly limit [the claimant's ] physical ability to do basic work activities." 20 CFR § 

404 .15 21 (a). Basic work activities are "abilities and aptitudes necessary to do most jobs, including, 

for example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling." 20 

CFR § 404.1521(b). 

The step two inquiry is a de minimis screening device to dispose of groundless claims. 

Yuckert, 482 US at 153-54. An impairment or combination of impairments can be found "not 

severe" only if the evidence establishes a slight abnormality that has "no more than a minimal effect 

on an individual's ability to work." See SSR 85-28; Yuckert v. Bowen, 841 F2d 303, 306 (91

h Cir 

1988) (adopting SSR 85-28). A physical or mental impairment must be established by medical 

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evidence consisting of signs, symptoms, and laboratory findings, and cannot be established on the 

basis of a claimant's symptoms alone. 20 CFR § 404.1508. 

The ALJ properly determined that Plaintiffhad severe impairments at step two and continued 

the analysis. Any error in failing to identify other limitations as "severe" at step two is therefore 

harmless. Moreover Plaintiff does not identify functional limitations arising out of anxiety that are 

different than those arising out of an affective disorder, an impairment the ALJ did find severe at step 

two. 

II. Medical Evidence 

Disability opinions are reserved for the Commissioner. 20 C.F.R. §§ 404.1527(e)(l); 

416. 927( e )( 1 ). If no conflict arises between medical source opinions, the ALJ generally must accord 

greater weight to the opinion of a treating physician than that of an examining physician. Lester v. 

Chater, 81F.3d821, 830 (9th Cir. 1995). More weight is given to the opinion of a treating physician 

because the person has a greater opportunity to know and observe the patient as an individual. Orn, 

495 F.3d at 632. In such circumstances the ALJ should also give greater weight to the opinion of 

an examining physician over that of a reviewing physician. Id. If a treating or examining 

physician's opinion is not contradicted by another physician, the ALJ may only reject it for clear and 

convincing reasons. Id. (treating physician); Widmark v. Barnhart, 454 F.3d 1063, 1067 (91

h Cir. 

2006) (examining physician). Even if one physician is contradicted by another physician, the ALJ 

may not reject the opinion without providing specific and legitimate reasons supported by substantial 

evidence in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. The opinion of an 

nonexamining physician, by itself, is insufficient to constitute substantial evidence to reject the 

opinion of a treating or examining physician. Widmark, 454 F .3d at 1066 n. 2. The ALJ may reject 

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physician opinions that are "brief, conclusory, and inadequately supported by clinical findings." 

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 

A. Caleb Burns, Ph.D. 

Dr. Bums examined Plaintiff in May 2008. Tr. 768-85. The evaluation included a mental 

status examination and psychological testing including the Wechsler Adult Intelligence Scale-III 

("WAIS-III"), the Wechsler Memory Scale-III ("WMS-III"), the Personality Assessment Inventory 

("PAI"), and the Mood Assessment Scale. Dr. Bums also administered the Word Reading subtest 

of the Wide Range Achievement Test-4. 

On mental status examination Dr. Bums noted Plaintiff was cooperative without signs of 

severe depression or anxiety. Tr. 777. Her attention and concentration were not grossly impaired, 

and her insight and judgment were reasonably good. Id Testing indicated average intelligence with 

good memory functioning. Tr. 778, 779. Dr. Bums' s diagnostic impression was Major Depression, 

recurrent, mild; Anxiety Disorder, NOS; and PTSD. Tr. 781. 

Dr. Bums completed Section I of a Mental Residual Function Capacity Assessment 

("MRFCA") in which he indicated Plaintiff was "moderately" limited in multiple functional 

categories: the ability to carry out detailed instructions; the ability to perform activities within a 

schedule, maintain regular attendance, and be punctual within customary tolerances; the ability to 

sustain an ordinary routine without special supervision; the ability to work in coordination with or 

proximity to others without being distracted by them; the ability to complete a normal workday and 

workweek without interruptions from psychologically based symptoms and to perform at a consistent 

pace without an unreasonable number and length of rest periods; the ability to interact appropriately 

with the general public; to ask simple questions or request assistance; to accept instructions and 

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respond appropriately to supervisors; the ability to respond appropriately to changes in the work 

setting; to be aware of normal hazards and take appropriate precautions; and the ability to travel in 

unfamiliar places or use public transportation. Tr. 786-87. The form defines a "moderate" 

limitation as "[a] limitation which seriously interferes with the individual's ability to perform the 

designated activity on a regular and sustained basis, i.e., 8 hours a day, 5 days a week, or an 

equivalent work schedule." Tr. 786. The form defines "markedly limited" as "[a] limitation which 

precludes the ability to perform the designated activity on a regular and sustained basis, i.e. 8 hours 

a day, 5 days a week, or an equivalent work schedule." Tr. 786. The form lists twenty functional 

factors for evaluation. 

The Social Security Program Operations Manual Systems ("POMS") specifies that section 

I of the MRFCA "is merely a worksheet to aid in deciding the presence and degree of functional 

limitations and the adequacy of documentation and does not constitute the RFC assessment." 

POMS DI 24510.060(B)(4)(a). Emphasis in original. Section III of the form contains the actual 

mental residual functional capacity assessment. Id See also Nathan v. Colvin, 551Fed.Appx.404, 

408 (9th Cir. 2014). Dr. Burns did not complete Section III of the form. 

"Moderately limited" as used in the MRFCA form means that an individual's capacity to 

perform the activity is impaired, but, according to POMS, it does not mean that an individual is 

precluded from performing that activity. POMS DI 24510.063. This court has found that a 

"moderate" limitation on a MRFCA does not mean that an individual is precluded from performing 

that activity. Coleman v. Astrue, No. 3:11-cv-01112-RE, 2013 WL 550536, at *7 (D. Or. Feb. 11, 

2013). "Markedly Limited" is checked "when the evidence supports the conclusion that the 

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individual cannot usefully perform or sustain the activity." Id. Accordingly, moderate limitations 

on the MRFCA need not be included in a claimant's RFC. 

The Commissioner argues that the identified limitations are adequately included in the RFC, 

noting the ALJ accommodated Plaintiffs moderate limitation in carrying out detailed instructions 

by limiting her to simple routine tasks. Tr. 22. Plaintiff contends the ALJ erred by failing to include 

limitations relating to maintaining a schedule, having regular work attendance, being punctual, 

sustaining an ordinary routine without special supervision, responding to supervisors, and being 

distracted by others. However, those moderate limitations do not preclude the satisfactory 

completion of the functions, and the ALJ did not err in failing to include those limitations in 

Plaintiffs RFC. 

B. Robert Henry, Ph.D. 

Dr. Henry reviewed the medical record and opined in May 2009 that Plaintiff"would do best 

working separately from others." Tr. 719. Plaintiff argues the ALJ erred by failing to include this 

in her RFC. However, the ALJ did not err because he restricted Plaintiff to only "occasional 

interaction" with coworkers and supervisors. Moreover, recommendations or conditions under 

which a claimant's employment performance may be optimized need not be included in the RFC. 

Rounds v. Comm 'r Soc. Sec. Admin., 795 F.3d 1177, 1185 (9th Cir. 2015). 

C. Utako Sekiya, M.D. 

Dr. Sekiya assessed Plaintiff in April 2009. Tr. 729-31. On mental status examination 

Plaintiff was cooperative, with somewhat intense eye contact, and was somewhat guarded, but 

appeared more relaxed by the end of the interview. Tr. 730. She had an anxious and intense affect. 

Plaintiffs thought processes ranged from tangential to relatively well-organized, and she had no 

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psychotic features. Id She had "somewhat decreased" concentration and attention, but was alert 

and oriented with average intelligence. Tr. 730. Her insight and judgment were poor and unreliable. 

Plaintiff contends that the ALJ erred by failing to include in the RFC functional limitations 

related to intense interactions, guardedness, anxiousness, periods of tangential thought process, 

decreased attention and concentration, and poor insight and judgment. The ALJ did not err because 

he limited Plaintiff to simple routine tasks with no public contact and limited interactions with coworkers and supervisors. 

IV. Lay Testimony 

The ALJ has a duty to consider lay witness testimony. 20 C.F.R. § 404.1513(d); 

404.1545(a)(3); 416.945(a)(3); 416.913(d); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 

Friends and family members in a position to observe the claimant's symptoms and daily activities 

are competent to testify regarding the claimant's condition. Dodrill v. Shala/a, 12 F.3d 915, 918-19 

(9th Cir. 1993). The ALJ may not reject such testimony without comment and must give reasons 

germane to the witness for rejecting her testimony. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 

1996). However, inconsistency with the medical evidence may constitute a germane reason. Lewis, 

236 F.3d at 512. The ALJ may also reject lay testimony predicated upon the testimony of a claimant 

properly found not credible. Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009). 

Plaintiff's aunt, Barbara Anderson, completed a third-party function report in April 2009. 

Tr. 253-60. Ms. Anderson reported that Plaintiff readies her children for school, does laundry and 

folds clothes, picks her children up from school, rests, helps prepare dinner if able, helps clean up, 

gets the children ready for bed, and watches television. Plaintiff takes care of her children and pets. 

Plaintiff "passes out a lot or back goes into spasms." Tr. 254. She does not sleep well. Ms 

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Anderson checks on Plaintiff when she bathes to insure she has not fainted. She has helped her wash 

her hair, and reminds her to take her medication. Ms. Anderson does most of the cooking. Ms. 

Anderson said Plaintiff does laundry daily, cleaning, and spends an hour or more mowing the lawn. 

Tr. 255. Plaintiff goes outside daily, and shops for groceries once a month. She uses the internet 

daily, and socializes on the computer and telephone. Regarding Plaintiff's ability to get along with 

other people, Ms. Anderson said [ s ]he is very guarded and small things make her very upset or she 

will have triggers that are not good." Tr. 258. Dizziness and fainting preclude social activities. 

Ms. Anderson said Plaintiff's conditions affect her ability to lift, squat, bend, stand, reach, 

walk, sit, kneel, climb stairs, see, remember, complete tasks, concentrate, understand, follow 

instruction, and get along with others. Tr. 258. Plaintiff can walk three blocks before requiring 10 

to 20 minutes of rest. She can pay attention for 10 to 15 minutes. She does not finish what she 

starts, has to re-read written instructions, does not follow spoken instruction, and does not handle 

stress, or changes in routine, well. Id 

In August 2009 Ms. Anderson wrote a letter in which she states Plaintiff is "pretty much 

confined to home due [to] her illness," and could only go for "very short" walks due to dizziness. 

Tr. 287. 

The ALJ noted Ms. Anderson's statements and found the medical evidence supported an 

RFC less restrictive than suggested by her. The ALJ found Plaintiff less than fully credible, and 

Plaintiff does not challenge that finding. On this record, the ALJ did not err in weighing the lay 

testimony. 

II I 

II I 

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V. The ALJ's Step Five Finding is Supported by Substantial Evidence 

Eachjob identified by the Vocational Expert's testimony, upon which the ALJ relied at step 

five, has a Specific Vocational Preparation (SVP) level of 2. Plaintiff contends that the RFC's 

limitation to simple tasks is inconsistent with occupations requiring a SVP level of 2. An 

occupation's SVP is the amount of time a typical worker requires to learn the techniques, acquire 

the information, and develop the facility required for average performance in a specific job. The 

Dictionary of Occupational Titles classifies SVP at levels 1through9. Work with an SVP of2 is 

classified as "unskilled work," defined in the regulations as work requiring little or no judgment to 

do simple duties that can be learned within 30 days. SSR 00-4p, available at 2000 WL 1898704, 

20 C.F.R. § 416.968(a). The ALJ's step five finding is supported by substantial evidence. 

CONCLUSION 

For the foregoing reasons, the Commissioner's decision is AFFIRMED and this matter is 

dismissed. 

8 '.}ul~ Dated this __ day of Mtty 2016. 

United States Magistrate Judge 

Page 17 - OPINION AND ORDER 

Case 6:15-cv-00252-CL Document 30 Filed 06/08/16 Page 17 of 17