IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

VICKI L. MANKIN 

Plaintiff, 

v. 

COMMISSIONER OF SOCIAL 

SECURITY ADMINISTRATION 

Defendant. 

DREW L. JOHNSON 

170 Valley River Dr. 

Eugene, OR 97401 

JOHN E. HAAPALA 

410 E. 10th Ave. Suite 240 

Eugene, OR 97401 

Attorneys for Plaintiff 

RONALD K. SILVER 

Assistant United States Attorney 

1000 S.W. Third Ave., Suite 600 

Portland, OR 97204 

SARAH L. MARTIN 

Social Security Administration 

Office of the General Counsel 

701 Fifth Ave., Suite 2900, M/S 221A 

Seattle, WA 98104-7075 

Attorneys for Defendant 

1 - OPINION AND ORDER 

Case No. 6:14-cv-01249-MA 

OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 1 of 25
MARSH, Judge 

Plaintiff Vicki L. Martin seeks judicial review of the final 

decision of the Commissioner of Social Security denying her 

application for Disability Insurance Benefits (DIB) under Title II 

of the Social Security Act, 42 U.S.C §§ 401-403. This Court has 

jurisdiction pursuant to 42 U.S.C. §§ 405(g). For the reasons that 

follow, I affirm the final decision of the Commissioner. 

FACTUAL AND PROCEDURAL BACKGROUND 

Plaintiff protectively filed an application for DIB on 

December 2, 2010, alleging disability as of September 1, 2006 due 

to arthritis in left knee; arthritis in right knee; and back pain. 

Plaintiff meets the insured status requirements for a DIB 

application through December 31, 2010. 

Plaintiff's claims were denied initially and upon 

reconsideration. Plaintiff filed a request for a hearing before an 

administrative law judge (ALJ). An ALJ held a hearing on January 

16, 2013, at which plaintiff appeared with her attorney and 

testified. A vocational expert, Vernon G. Arne also appeared at the 

hearing and testified. On March 13, 2013, the ALJ issued an 

unfavorable decision. The Appeals Council denied plaintiff's 

request for review, and therefore, the ALJ's decision became the 

final decision of the Commissioner for purposes of review. 

Born in 1958, plaintiff was 54 years old on the date of the 

ALJ's unfavorable decision. Plaintiff has a eighth grade education. 

2 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 2 of 25
Plaintiff has past relevant work as a certified nursing assistant 

(CNA) . 

At step one, the ALJ found that plaintiff has not engaged in 

substantial gainful activity from her alleged onset date of 

September 1, 2006 through her date last insured, December 31, 2010. 

At step two, the ALJ found that plaintiff had the following severe 

impairments: obesity; chronic left shoulder pain; left shoulder 

adhesive capsulitis; gastroesophageal reflux disease; history of 

alcohol abuse in remission; and mild bilateral knee degenerative 

joint disease. At step three, the ALJ found that plaintiff's 

impairment or combination of impairments, did not meet or medically 

equal a listed impairment. 

The ALJ assessed plaintiff with a residual functional capacity 

(RFC) to light work as defined in 20 C.F.R. § 404.1567 but with the 

following limitations. Plaintiff can lift twenty pounds 

occasionally and ten pounds frequently and can stand or walk for 

six hours in an eight-hour workday and sit for six hours in an 

eight-hour workday. Plaintiff can occasionally reach overhead with 

her left, non-dominant arm and occasionally crouch and crawl. 

Plaintiff should avoid exposure to hazards such as unprotected 

heights or dangerous machinery. 

At step four, the ALJ found that plaintiff is unable to 

perform her past relevant work. At step five, the ALJ concluded 

that considering plaintiff's age, education, work experience, and 

3 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 3 of 25
residual functional capacity, jobs exist in significant numbers in 

the national economy that plaintiff can perform, such as first aid 

attendant, photocopy operator, survey worker, and mold machine 

operator. Accordingly, the ALJ concluded that plaintiff has not 

been under a disability under the Social Security Act from 

September 1, 2006 through December 31, 2010, the date last insured. 

ISSUES ON REVIEW 

On appeal to this court, plaintiff contends the following 

errors were committed: ( 1) the ALJ failed to properly evaluate 

plaintiff's testimony; (2) the ALJ erred in assessing the opinion 

of plaintiff's treating physician; ( 3) the ALJ erred in weighing 

lay testimony; and (4) because of these errors, the hypothetical 

posed to the vocational expert was invalid. 

STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if 

the Commissioner applied the proper legal standards and the 

findings are supported by substantial evidence in the record. 42 

U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 

2010). "Substantial evidence is more than a mere scintilla but less 

than a preponderance; it is such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion." Hill, 698 

F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at 

690. The court must weigh all the evidence, whether it supports or 

detracts from the Commissioner's decision. Martinez v. Heckler, 807 

4 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 4 of 25
F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be 

upheld, even if the evidence is susceptible to more than one 

rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 

359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the 

Commissioner's conclusion, the Commissioner must be affirmed; "the 

court may not substitute its judgment for that of the 

Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 

2001) . 

DISCUSSION 

I. The ALJ Did Not Err in Evaluating Plaintiff's Credibility 

A. Standards 

To determine whether a claimant's testimony regarding 

subjective pain or symptoms is credible, an ALJ must perform a two 

stage analysis. 20 C.F.R. § 404.12629. The first stage is a 

threshold test in which the claimant must produce objective medical 

evidence of an underlying impairment that could reasonably be 

expected to produce the symptoms alleged. Molina v. Astrue, 674 

F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 

1035, 1039 (9th Cir. 2008). At the second stage of the credibility 

analysis, absent affirmative evidence of malingering, the ALJ must 

provide clear and convincing reasons for discrediting the 

claimant's testimony regarding the severity of the symptoms. 

Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1161 

5 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 5 of 25
(9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 

Cir. 2007). 

The ALJ must make findings that are sufficiently specific to 

permit the reviewing court to conclude that the ALJ did not 

arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 

763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. 

Factors the ALJ may consider when making such credibility 

determinations include the objective medical evidence, the 

claimant's treatment history, the claimant's daily activities, 

inconsistencies in testimony, effectiveness or adverse side effects 

of any pain medication, and relevant character evidence. Ghanim, 

763 F.3d at 1163; Tommasetti, 533 F.3d at 1039. 

B. Analysis 

At the hearing, plaintiff testified that she has significant 

pain in her left shoulder and is unable to lift her left arm above 

her head. Tr. 36, 41. Plaintiff testified that she began to 

experience lower back pain in 2009 but did not seek medical 

treatment at that time. Tr. 38. Plaintiff also testified that she 

is able to walk 50 yards at a time, sit for one hour, and stand for 

one hour before needing to change positions. Tr. 39. Plaintiff 

further testified that she can lift half a gallon of milk, perform 

squats with her knees, and is able to walk up and down a flight of 

stairs. Tr. 40. 

6 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 6 of 25
In a January 3, 2011 Activities of Daily Living (AOL) Report, 

plaintiff noted that she completes household chores such as 

vacuuming, dusting, and mopping. Tr. 144. Plaintiff also noted that 

she spends one hour daily preparing dinner. Tr. 143. Plaintiff 

indicated that she spends two hours a week grocery shopping. Tr. 

145. Plaintiff further indicated that she enjoys hobbies such as 

bicycling, camping, and gardening, but noted that camping and 

gardening are more difficult given her pain. Plaintiff stated that 

she can walk one mile before resting and is able to lift ten 

pounds. 

In a Pain and Fatigue Questionnaire, plaintiff noted that she 

experiences pain in her left shoulder, right knee and mid to lower 

back throughout the day. Tr. 165. Plaintiff also noted that pain 

medication alleviates her pain. Id. Plaintiff indicated that she 

experiences fatigue and requires a daily one hour nap. Plaintiff 

also indicated that she tries to push herself to stay active all 

day. Id. 

In the decision, the ALJ concluded that plaintiff has 

medically determinable impairments that cause symptoms resulting in 

some limitations on work activity, but her subjective complaints 

and alleged limitations are not fully credible. Tr. 16. 

Contrary to plaintiff's assertion, the ALJ provided three 

clear and convincing reasons, citing specific record evidence, 

which undermine her subjective complaints. 

7 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 7 of 25
1. inconsistent with the medical evidence 

Contrary to plaintiff's suggestion, the ALJ specifically found 

plaintiff's objective medical record is inconsistent with her 

subjective allegations of debilitating symptoms. Tr. 18. When the 

claimant's own medical record undercuts her assertions, the ALJ may 

rely on that contradiction to discredit the claimant. Parra v. 

As true, 481 F.3d 742, 750-51 (9th Cir. 2007); Morgan v. 

Commissioner Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); 

Carmickle, 533 F.3d at 1161. The ALJ's findings are supported by 

substantial evidence in the record. 1 

As the ALJ correctly discussed, the medical findings from the 

relevant period, September 1, 2006 through December 31, 2010, do 

not corroborate plaintiff's allegations of severe debilitating 

pain. For example, an August 2009 x-ray of plaintiff's right knee 

revealed a small joint effusion with mild spurring at the insertion 

of the quadriceps tendon of the patella with no evidence of 

arthritis. Tr. 28 9. In an October 2007 examination, treating 

1 In her reply brief, plaintiff erroneously applies the 

Cotton test to argue that the objective medical evidence was 

sufficient to support plaintiff's pain allegations. Cotton v. 

Bowen, 799 F.2d 1403 (9th Cir. 1986). The Cotton test is part of 

the ALJ's two step analysis in assessing plaintiff's testimony. 

In this case, the ALJ found that plaintiff met the Cotton test, 

and thus, in the absence of evidence of malingering, the ALJ 

provided three clear and convincing reasons, supported by 

substantial evidence to reject plaintiff's allegations. Despite 

plaintiff's alternative interpretation of the medical evidence, 

the ALJ reasonably found that plaintiff's allegations are 

inconsistent with the objective medical evidence. See, Molina, 

674 F.3d at 1111. 

8 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 8 of 25
physician Rick Hindmarsh, M.D. noted that plaintiff's left shoulder 

had limited range of motion; however, by April 2008, Dr. Hindmarsh 

noted that plaintiff's shoulder pain was well controlled and noted 

a stiff shoulder and spine. Tr. 275, 276, 281. In September 2008, 

Dr. Hindmarsh noted that plaintiff reported that her quality of 

life has significantly improved due to her current dosage of pain 

medications. Tr. 267. In August 2009, Dr. Hindmarsh noted slight 

swelling in the right knee with full range of motion, an absence of 

tenderness, and palpable crepitations. Tr. 260. Indeed, Dr. 

Hindmarsh noted relatively normal objective findings relating to 

plaintiff's knee and shoulder. See generally Tr. 240, 243, 244, 

252, 254, 256, 258. 

Additionally, the medical evidence dated after December 31, 

2010 also fails to substantiate plaintiff's testimony regarding the 

intensity of her pain. For example, a March 2011 x-ray of 

plaintiff's left shoulder revealed no gross instability with type 

II acromion and chronic changes consistent with tendinosis. Tr. 

207. A June 2011 left knee x-ray was negative for degenerative 

changes or effusion. Tr. 225. A June 2011 x-ray of plaintiff's 

lumbar spine revealed mild degenerative changes. Tr. 227. Moreover, 

in March 2011, examining physician Todd J. Lewis, M.D. noted a 

re la ti vely normal examination and opined that plaintiff's pain 

complaints and behaviors during the examination "appear to exceed 

the definable pathology." Tr. 202-206. In fact, as the ALJ noted, 

9 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 9 of 25
plaintiff exhibited poor effort on and actively resisted physical 

testing during the examination. Tr. 17, 202-206. 

Contrary to plaintiff's argument, treatment notes from 

treating physician Patrick Rask, M.D. do not support plaintiff's 

allegations of back pain prior to December 31, 2010. In an April 

2012 treatment note, Dr. Rask noted that plaintiff subjectively 

reported aches and pains in her lower back for the past ten years. 

As the ALJ noted, the record shows that although plaintiff alleged 

experiencing back pain prior to her date last insured, plaintiff 

did not seek any medical treatment for her back pain prior to June 

2011. Tr. 13, 228, 229. In the April 2012 treatment note, Dr. Rask 

noted that plaintiff fell and hurt her back recently and then 

received a referral from Dr. Hindmarsh to see Dr. Rask. Tr. 317. 

In short, the ALJ reasonably concluded that the objective 

medical evidence in the record is inconsistent with the degree of 

plaintiff's subjective symptoms and appropriately discounted her 

credibility on this basis. 

2. ADLs 

The ALJ found that plaintiff's variety of activities of daily 

living are inconsistent with the level of disability she alleges. 

For example, the ALJ discussed that plaintiff is capable of 

extensive household chores such as laundry, vacuuming, mopping, 

dusting, and outdoor work. Tr. 18. Plaintiff indicated that she 

spends one hour cooking a full course dinner for her husband every 

10 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 10 of 25
night. Tr. 143. The ALJ also noted that plaintiff reported that she 

frequently completes errands for her elderly mother and takes care 

of her parents including cooking and cleaning for them. Tr. 18. 

Furthermore, daily activities demonstrating the ability to 

concentrate and finish tasks indicates a "capacity that [is] 

transferable to a work setting.v Molina, 674 F.3d at 1113. 

Plaintiff argues that the ALJ erroneously expected plaintiff's 

daily activities to show a completely debilitating medical 

impairment, and that the ALJ penalized plaintiff for attempting to 

lead a normal life despite her limitations. I disagree. 

While a claimant need not be completely incapacitated to be 

eligible for disability, here, the record shows that plaintiff's 

activities are fairly extensive, and plaintiff attempts to minimize 

the record with respect to her ADLs. For example, in August 2009, 

Dr. Hindmarsh noted that plaintiff had been experiencing right knee 

pain that began after she had been working out on a treadmill for 

three weeks. Tr. 260. In an August 2010 treatment note, Dr. 

Hindmarsh indicated that plaintiff had taken a recent trip to 

Japan. Tr. 238. In December 2010, Dr. Hindmarsh noted that 

plaintiff bikes for exercise three to four times a week. Tr. 235. 

With respect to plaintiff's allegations of pain in her left 

shoulder, the ALJ fully considered this limitation. Tr. 18-19. The 

RFC finding incorporates a requirement of only occasional reaching 

overhead with plaintiff's left, non-dominant arm. Tr. 16. 

11 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 11 of 25
Based on this significant evidence in the record, I conclude 

that the ALJ properly discredited plaintiff's testimony because her 

level of activity is inconsistent with the degree of impairment 

that she alleges. See Berry, 622 F. 3d at 1235 (inconsistencies 

between self-reported symptoms and activities supported adverse 

credibility finding). 

3. part-time work 

Finally, the ALJ discredited plaintiff's credibility on the 

basis of performing part-time work after her alleged disability 

onset date. Tr. 17-18. Specifically, the ALJ noted that plaintiff 

testified that she worked three days for six hours a week as a 

caregiver for an elderly woman until she passed away in 2009. 

Plaintiff testified that she provided companionship and assisted 

the elderly woman in personal care management, such as bathing. Tr. 

3~. The record supports plaintiff's engagement in part-time work. 

In a December 2007 treatment note, Dr. Hindmarsh noted that 

plaintiff was able to continue working while on methadone, a type 

of pain medication. Tr. 281. In September 2009, Dr. Hindmarsh noted 

that plaintiff's knee pain was worse after a full day of work. Tr. 

256. Moreover, in October 2009, Dr. Hindmarsh noted that plaintiff 

was able to continue working with her current dosage of pain 

medications. Tr. 251. 

As the ALJ pointed out, plaintiff testified that she would 

have been able to perform this work full time if it was available. 

12 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 12 of 25
Tr, 18, 46-47. The ALJ correctly found that nthis demonstrates the 

capacity to perform some work.n Tr. 18. Performance of job duties 

on a part-time basis, while not sufficient to establish work full 

time, can constitute a legitimate reason for discounting a 

claimant's assertion of disability. See Bray v. Commissioner of 

Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (finding that 

ALJ properly discounted claimant's credibility when the claimant 

had worked and sought other work since claimant's disability onset 

date) . I conclude this inconsistency is a clear and convincing 

reason for concluding that plaintiff was not wholly credible. 

Although plaintiff insists on a different interpretation of 

the evidence, I conclude that the ALJ made logical inferences from 

the record to support her conclusions. Because the ALJ's 

interpretation is rational and is supported by substantial evidence 

in the record as a whole, it will not be disturbed. See e.g., 

Molina, 674 F.3d at llll(ALJ's findings must be upheld if they are 

supported by reasonable inferences drawn from the record) . 

Accordingly, I conclude that this basis combined with the ALJ's 

other two reasons amount to clear and convincing support backed by 

substantial evidence, for rejecting plaintiff's subjective symptom 

statements. 

II. The ALJ Did Not Err in Assessing Treating Source Opinion 

In general, the opinion of a treating physician is given more 

weight than the opinion of an examining physician, and the opinion 

13 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 13 of 25
of an examining physician is afforded more weight than the opinion 

of a nonexamining physician. Ghanim, 7 63 F. 3d at 1160; Orn, 4 95 

F.3d at 632. "If a treating physician's opinion is well-supported 

by medically acceptable clinical and laboratory diagnostic 

techniques and is not inconsistent with the other substantial 

evidence in [the] case record, [it will be given] controlling 

weight." Orn, 495 F. 3d at 631 (internal quotations 

omitted)(alterations in original); 20 C.F.R. § 404.1527(c). To 

reject the uncontroverted opinion of a treating or examining 

physician, the ALJ must present clear and convincing reasons. 

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

If a treating or examining physician's opinion is contradicted 

by another physician's opinion, it may be rejected by specific and 

legitimate reasons. Tonapetyan, 242 F.3d at 1148. When evaluating 

conflicting opinions, an ALJ is not required to accept an opinion 

that is not supported by clinical findings, or is brief or 

conclusory. Id. at 1149. 

Plaintiff argues that the ALJ failed to provide clear and 

convincing reasons for rejecting Dr. Hindmarsh's opinion. In a June 

29, 2011 physical capacities assessment, Dr. Hindmarsh assessed 

that plaintiff can sit for three hours, stand and walk for two 

hours each, and must lay down for two hours in an eight-hour 

workday. Tr. 231. Dr. Hindmarsh opined that plaintiff can lift up 

to five pounds; grasp; push and pull; and perform fine manipulation 

14 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 14 of 25
all with the right hand only. Id. Dr. Hindmarsh also opined that 

plaintiff can occasionally reach but never bend or climb. Id. 

Because Dr. Hindmarsh's opinion was contradicted, 2 the ALJ was 

required to provide specific and legitimate reasons, backed by 

substantial evidence, to reject his opinion. Bayliss, 427 F.3d at 

1216. The ALJ discussed Dr. Hindmarsh's opinion and accorded the 

opinion "little weight" for three reasons as discussed below. 

Having carefully reviewed the record, I conclude that the ALJ's 

reasoning is supported by substantial evidence. 

First, the ALJ gave "little weight" to Dr. Hindmarsh' s opinion 

because it was assessed after plaintiff's date last insured. In a 

claim under Title II of the Act, a claimant has the burden to 

establish disability prior to the date her insurance coverage 

expires. 42 U.S.C. § 416(i) (3); 20 C.F.R. § 404.131. Consequently, 

the ALJ may only consider symptoms and limitations from the 

relevant time period, September 2006 through December 31, 2010, in 

determining whether a disability was present while plaintiff had 

insured status. Flaten v. Secretary of Health & Human Services, 44 

F.3d 1453, 1458-59 (9th Cir. 1995). Any subsequent deterioration of 

2 In a March 29, 2011 Physical RFC Assessment, nonexamining 

physician, William Backlund, M.D., opined that plaintiff could 

perform medium level work with a limitation to occasional 

overhead reaching with the left arm. Tr. 65-66. On July 7, 2011, 

nonexamining physician, Neal Berner, M.D. concurred with this 

opinion. Tr. 77-78. 

15 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 15 of 25
impairments after plaintiff's period of eligibility is irrelevant. 

Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). 

In this case, Dr. Hindmarsh completed the physical assessment 

form on June 29, 2011, over six months after plaintiff's date last 

insured of December 31, 2010. Dr. Hindmarsh did not indicate that 

his June 29, 2011 physical assessment was a retrospective opinion. 3 

Moreover, an ALJ may give less credit or weight to opinions 

assessed after plaintiff's insured status has expired. See Johnson 

v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 1995); Lev v. Astrue, 

No. C 09-05074 RS, 2010 WL 3037261, at *6, (D. Or. July 30, 2010). 

Indeed, plaintiff does not challenge the ALJ' s reasoning for 

rejecting Dr. Hindmarsh's opinion on this basis. 

Second, the ALJ rejected Dr. Hindmarsh's opinion because it is 

inconsistent with plaintiff's concurrent reports of functioning. 

Contrary to plaintiff's argument, when read in the context of the 

discussion of Dr. Hindmarsh's opinion and the ALJ's decision as a 

whole, it is clear that "concurrent reports of functioning" refers 

to plaintiff's daily activities. Tr. 16-17, 19. 4 

3 An ALJ may not solely disregard a retrospective opinion 

because it is retrospective. Smith v. Bowen, 849 F.2d 1222, 1225 

(9th Cir. 1988). In this case, although Dr. Hindmarsh's opinion 

was not retrospective in nature, the ALJ gave two additional 

specific and legitimate reasons for rejecting Dr. Hindmarsh's 

opinion. 

4 I note that plaintiff appeared to clearly understand 

"concurrent reports of functioning" in challenging the ALJ's 

finding that plaintiff's allegations were inconsistent with her 

16 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 16 of 25
An ALJ may reject a medical opinion that is inconsistent with 

a claimant's activities, including the ability to perform some 

work. See Morgan, 169 F.3d at 601-602. As the ALJ correctly found, 

Dr. Hindmarsh's opinion is inconsistent with plaintiff's reported 

activities of functioning during the relevant period. For example, 

as discussed previously, plaintiff reported running on a treadmill 

and biking three to four times a week for exercise. Tr. 235, 260. 

In August 2010, plaintiff reported to Dr. Hindmarsh that she had 

taken a recent trip to Japan. Tr. 238. As the ALJ noted, plaintiff 

worked six hours a week as a caregiver to an elderly woman and 

spent several hours a week showing apartments for her landlord. Tr. 

33, 44. In fact, in August and October 2008 and October 2009, 

plaintiff reported to Dr. Hindmarsh that her pain was well managed 

while she worked. Tr. 242, 251, 267. 

Once again, plaintiff presents an alternative interpretation 

of the facts with respect to her daily activities; however, the 

ALJ' s rational interpretation of her concurrent functioning as 

inconsistent with Dr. Hindmarsh' s opinion is supported by the 

record. For example, as discussed above, plaintiff reported 

cleaning, sweeping, mopping, vacuuming, completing laundry, and 

gardening. Tr. 144. As discussed previously, the ALJ also noted 

concurrent reports of functioning. See Pl. Br. (ECF No. 12) at 

pp. 15-17. 

17 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 17 of 25
that. plaintiff reported frequently completing errands for her 

elderly mother and taking care of her parents. Tr. 18. 

Third, the ALJ rejected Dr. Hindmarsh's opinion on the basis 

that it considers limitations from plaintiff's back impairment, 

which was diagnosed after December 31, 2010. On June 29, 2011, 

plaintiff first reported low back pain, and Dr. Hindmarsh listed 

back pain as a medical problem in plaintiff's treatment notes. Tr. 

229. Dr. Hindmarsh's physical functional assessment is also dated 

June 29, 2011. Tr. 231. Based on these facts, the ALJ reasonably 

concluded that Dr. Hindmarsh's physical assessment included 

limitations from plaintiff's report of back pain. Tr. 19. 

Plaintiff first argues that the ALJ's inference that Dr. 

Hindmarsh's opinion incorporated limitations from plaintiff's back 

impairment is unreasonable. Specifically, plaintiff argues that her 

back impairment had not been fully diagnosed at the time of Dr. 

Hindmarsh's assessment; consequently, his opinion did not 

incorporate limitations from her back pain. Contradictorily, 

plaintiff also contends that Dr. Rask opined that plaintiff's back 

problems had existed at least two years prior to the expiration of 

her insured status, thus Dr. Hindmarsh's inclusion of limitations 

from her back impairment was appropriate. Plaintiff's arguments 

fail. 

Prior to June 29, 2011, as the ALJ noted, the record indicates 

that plaintiff did not seek medical treatment for her complaints of 

18 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 18 of 25
back pain. Tr. 13, 228. At the hearing, plaintiff testified that 

she did not seek any treatment for her back pain prior to December 

31, 2010. Tr. 38. The ALJ properly found plaintiff's back 

impairment as non-severe at step two for the relevant period, 

September 1, 2006 through December 31, 2010. Tr. 13. To be sure, 

plaintiff does not challenge the ALJ's step two finding, which I 

conclude is supported by substantial evidence in the record. 

Accordingly, it is not unreasonable for the ALJ to conclude that 

Dr. Hindmarsh' s assessment included limitations from her back 

impairment. 5 

Furthermore, to the extent that plaintiff indirectly 

challenges the ALJ's assessment of Dr. Rask's opinion, this 

argument is meritless. Plaintiff misstates an opinion from Dr. Rask 

when she asserts that Dr. Rask opined that plaintiff's back 

impairment existed two years prior to her date last insured. In a 

September 12, 2012 letter, Dr. Rask merely summarized plaintiff's 

subjective allegation that she "recalls" injuring her back over the 

past ten years with her pain worsening two years prior to December 

5 Contrary to plaintiff's assertion, the ALJ was not required 

to re-contact Dr. Hindmarsh. "Ambiguous evidence, or the ALJ's 

own finding that the record is inadequate to allow for proper 

evaluation of the evidence, triggers the ALJ' s duty to· 'conduct 

an appropriate inquiry.'" Tonapetyan v. Halter, 242 F.3d 1144, 

1150 (9th Cir. 2001) (quoting Smolen, 80 F. 3d at 1288)). After a 

careful review of the record, I conclude that there are no 

ambiguities or inadequacies that would trigger the ALJ's duty to 

develop the record. 

19 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 19 of 25
31, 2010. Tr. 347. In this case, the only evidence that plaintiff's 

back impairment existed prior to December 31, 2010 is plaintiff's 

own testimony, which the ALJ appropriately discredited. Thus, the 

ALJ provided specific and legitimate reasons, supported by 

substantial evidence to reject Dr. Rask's opinion. 

Finally, contrary to plaintiff's argument, the ALJ 

specifically evaluated Dr. Hindmarsh's opinion in accordance with 

the specific factors listed in 20 C.F.R. § 404.1527(c). Tr. 16. The 

ALJ rejected Dr. Hindmarsh's opinion for reasons contemplated by 

the regulation-namely, its inconsistency with other evidence in the 

record, supportability, and its irrelevance in light of the 

statutory requirement that plaintiff must establish disability 

prior to her date last insured for DIB benefits. 42 U.S.C. § 

416(i) (3); 20 C.F.R. § 404.131. To be sure, plaintiff does not cite 

to any legal authority requiring the ALJ to provide a detailed 

discussion with respect to each factor listed in the regulation. 

In summary, I conclude that the ALJ did not err in evaluating 

Dr. Hindmarsh' s opinion and provided specific and legitimate 

reasons backed by substantial evidence in the record as a whole. 

III. The ALJ Did Not Err in Evaluating Lay Testimony 

Lay witness testimony as to how a claimant's symptoms affect 

her ability to work is competent evidence, which the ALJ must take 

into account. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); 

Stout, 454 F.3d at 1053; Nguyen v. Chater, 100 F.3d 1462, 1467 (9th 

20 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 20 of 25
Cir. 1996) . The ALJ is required to account for competent lay 

witness testimony, and if it is rejected, provide germane reasons 

for doing so. Valentine, 574 F.3d at 694. 

In a January 7, 2011 third party Function Report, plaintiff's 

husband, Edward Mankin noted that plaintiff has limited range of 

motion in her left shoulder and has difficulty walking and climbing 

stairs due to the arthritis in her right knee. Tr. 149. Mr. Mankin 

testified that plaintiff has no problems with self care. Tr. 150. 

Mr. Mankin also noted that plaintiff can lift ten to 15 pounds, can 

walk a quarter of a mile before resting, and has difficulty 

squatting, bending, and kneeling. Tr. 154. Mr. Mankin further noted 

that plaintiff spends one hour daily cooking a full dinner. Tr. 

151. Mr. Mankin indicated that plaintiff spends one to two hours a 

month showing apartments for her landlord. Tr. 153. Her husband 

also noted that she spends time camping and gardening but needs 

help from her husband to engage in these activities. Tr. 153. 

In a separate, undated letter, Mr. Mankin noted that plaintiff 

is no longer able to stand to wash dishes and prepares only quick 

simple meals. Tr. 200. Mr. Mankin also noted that he has taken over 

most of the household chores such as vacuum, shopping, dishes and 

laundry due to plaintiff's limited abilities. Id. Mr. Mankin 

. further indicated that in the past five years, he has watched 

plaintiff's health deteriorate. 

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Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 21 of 25
In the instant action, plaintiff argues that the ALJ failed to 

provide sufficient reasons to discount Mr. Mankin's January 7, 2011 

Third Party Report. Plaintiff contends that although the ALJ found 

Mr. Mankin's Third Party Report consistent with the medical 

evidence and plaintiff's reports of functioning, in effect, the ALJ 

rejected Mr. Mankin' s Third Party Report because Mr. Mankin' s 

testimony supports an inability to perform a full range of light 

work. I disagree. 

In the decision, the ALJ gave little weight to Mr. Mankin's 

undated letter, which was submitted after the hearing. The ALJ 

discredited Mr. Mankin's letter because it reflected plaintiff's 

current functioning as opposed to her functioning prior to December 

31, 2010 and was not consistent with the medical evidence of record 

during the relevant period. 6 With respect to Mr. Mankin's January 

7, 2011 Third Party Report, the ALJ found Mr. Mankin's description 

of plaintiff's functioning as generally consistent with the medical 

evidence and plaintiff's own reports of functioning. 

In this case, the ALJ did not reject Mr. Mankin's Third Party 

Report. Mr. Mankin' s testimony generally reflects plaintiff's 

reports of her own daily activities. For example, Mr. Mankin 

6 In her opening brief, plaintiff appears to only challenge 

the ALJ's assessment of Mr. Mankin's Third Party Report. However, 

.in her reply, plaintiff appears to challenge the ALJ's assessment 

of Mr. Mankin's undated letter. Contrary to plaintiff's argument, 

I conclude that the ALJ gave two germane reasons for giving 

"little weight" to Mr. Mankin's letter. 

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Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 22 of 25
described plaintiff engaging in many daily activities such as 

vacuuming, cleaning, gardening, and cooking full meals. Tr. 151. 

Similar to plaintiff's reports, Mr. Mankin also noted that 

plaintiff takes care of her elderly parents, including running 

errands for them, completing household chores for them, and taking 

them to medical appointments. Tr. 150. Moreover, Dr. Hindmarsh's 

2007 through 2010 treatment notes are also consistent with Mr. 

Mankin's testimony. See generally Tr. 234, 235, 238, 240, 251. 

Contrary to plaintiff's assertion, the ALJ' s RFC finding 

incorporates Mr. Mankin's testimony. Consistent with Mr. Mankin's 

testimony, the ALJ found that plaintiff could perform a reduced 

level of light work. For example, Mr. Mankin noted that plaintiff 

could lift ten to 15 pounds; the ALJ found that plaintiff could 

lift ten pounds frequently and 20 pounds occasionally. Tr. 15. 

Similarly, the ALJ found that plaintiff is limited to occasional 

reaching overhead with her left non-dominant arm, which reflects 

Mr. Mankin's testimony that plaintiff has limited range of motion 

in her left arm. Tr. 15. With respect to Mr. Mankin's testimony 

regarding plaintiff's allegations of pain and fatigue, as discussed 

above, the ALJ appropriately discredited the alleged severity of 

plaintiff's symptoms. To be sure, the ALJ's RFC finding is 

generally consistent with Mr. Mankin's testimony. 

Furthermore, Mr. Mankin's testimony adds no new allegations on 

behalf of plaintiff. Failure to comment on lay testimony is 

23 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 23 of 25
harmless "[w] here lay witness testimony does not describe any 

limitations not already described by the claimant, and the ALJ's 

well supported reasons for rejecting the claimant's testimony apply 

equally well to the lay witness testimony." Molina, 674, F.3d at 

1117. Mr. Mankin's testimony regarding plaintiff's pain and 

limitations is similar to that of plaintiff, including allegations 

of pain in her left shoulder and difficulty lifting. As discussed 

above, the ALJ gave three convincing reasons, supported by 

substantial evidence to discount plaintiff's testimony. 

Specifically, the ALJ found that plaintiff's allegations of pain 

were inconsistent with the her activities of daily living, and this 

reason is applicable to Mr. Mankin's testimony. Thus, any error on 

the part of the ALJ in failing to discuss specific weight assessed 

to Mr. Mankin's testimony is harmless. See Burch v. Barnhart, 400 

F. 3d 676, 679 (9th Cir. 2005) ("A decision of the ALJ will not be 

reversed for errors that are harmless."). 

IV. The ALJ Did Not Err in the Hypothetical Posed to the VE 

Plaintiff contends that the ALJ' s hypothetical is invalid 

because it did not include all of plaintiff's limitations. 

Plaintiff's argument is misplaced. 

Contrary to plaintiff's argument, the ALJ included all of the 

limitations from the RFC finding in the hypothetical posed to the 

VE. The ALJ is required to pose a hypothetical composed of only 

limitations that the ALJ found credible and supported by 

24 - OPINION AND ORDER 

Case 6:14-cv-01249-MA Document 15 Filed 07/22/15 Page 24 of 25
substantial evidence in the record. Bayliss,427 F.3d at 1217; see 

also Magallanes v. Brown, 881 F.2d 747, 756-57 (9th Cir. 

1989) (holding that it is proper for an ALJ to limit a hypothetical 

to restrictions supported by substantial evidence in the record) . 

As discussed previously, the ALJ properly discredited plaintiff's 

allegations that she cannot stand or walk for six hours or that she 

must lay down during the workday. Tr. 16-17. To the extent that 

plaintiff indirectly challenges the ALJ's RFC finding as 

unsupported, plaintiff's argument fails. The medical record, 

specifically Dr. Hindmarsh' s 2007 through 2010 treatment notes, 

clearly support the ALJ's RFC finding. Tr. 234, 235, 238, 240, 251. 

After careful review of the record, I conclude that substantial 

evidence supports the ALJ's RFC finding, and thus, the ALJ did not 

err in posing a hypothetical to the VE. 

CONCLUSION 

For the reasons stated above, the Commissioner's final 

decision is AFFIRMED. This action is DISMISSED. 

IT IS SO ORDERED. 

DATED this "j._2.._ day of JULY, 2015. 

Malcolm F. Marsh 

United States District Judge 

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