IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

AMY MARIE HAMILTON, 3:15-cv-00859-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

LISA R. J. PORTER

JP Law PC

5200 S.W. Meadows Road, Suite 150

Lake Oswego, OR 97035

(503) 245-6309

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

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Case 3:15-cv-00859-BR Document 18 Filed 05/12/16 Page 1 of 24
DAVID MORADO

Regional Chief Counsel

JEFFREY E. STAPLES 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900

Seattle, WA 98104

(206) 615-3706

Attorneys for Defendant

BROWN, Judge.

Plaintiff Amy Marie Hamilton seeks judicial review of a

final decision of the Commissioner of the Social Security

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

for Supplemental Security Income (SSI) under Title XVI of the

Social Security Act. This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). 

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter with prejudice.

ADMINISTRATIVE HISTORY

Plaintiff filed an application for SSI on September 26,

2011, and alleged a disability onset date as of July 3, 2000. 

Tr. 43, 184.1

 Her application was denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held a

hearing on August 7, 2013. Tr. 40. At the hearing Plaintiff and

1

 Citations to the official transcript of record filed by

the Commissioner on October 9, 2015, are referred to as “Tr."”

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a vocational expert (VE) testified. Plaintiff was represented by

an attorney. 

On August 14, 2013, the ALJ issued an opinion in which she 

found Plaintiff is not disabled and, therefore, is not entitled

to benefits. Tr. 22-34. On April 24, 2015, that decision became

the final decision of the Commissioner when the Appeals Council

denied Plaintiff’s request for review. Tr. 1-3. See Sims v.

Apfel, 530 U.S. 103, 106-07 (2000). 

BACKGROUND

Plaintiff was born on April 15, 1973. Tr. 46, 184. 

Plaintiff was 40 years old at the time of the hearing. Plaintiff

has a high-school diploma. Tr. 47, 189. Plaintiff does not have

any past relevant work experience. Tr. 33. 

Plaintiff alleges disability due to a pinched nerve in her

right hip, fibromyalgia, sciatica, post-traumatic stress

disorder, “right knee problems,” depression, anxiety, asthma,

“short term memory problems,” “comprehension problems,” insomnia,

migraine headaches, and irritable bowel syndrome. Tr. 188.

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

summary of the medical evidence. After carefully reviewing the

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

medical evidence. See Tr. 27-33.

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STANDARDS

The initial burden of proof rests on the claimant to

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

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

inability “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which . . . has lasted or can be expected to last for

a continuous period of not less than 12 months.” 42 U.S.C. 

§ 423(d)(1)(A). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)). 

The district court must affirm the Commissioner’s decision

if it is based on proper legal standards and the findings are

supported by substantial evidence in the record as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). It is more than a mere scintilla of evidence,

but less than a preponderance. Id. (citing Valentine, 574 F.3d

at 690). 

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The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner’s decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006). 

DISABILITY ANALYSIS

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 416.920(a)(4)(I). See also Keyser v.

Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairments or combination of impairments. 20 C.F.R. 

§ 416.920(a)(4)(ii). See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner

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determines the claimant’s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

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

§ 416.920(a)(4)(iii). See also Keyser, 648 F.3d at 724. The

criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments). 

If the Commissioner proceeds beyond Step Three, she must

assess the claimant’s residual functional capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite her limitations. 20 C.F.R.

§ 416.920(e). See also Social Security Ruling (SSR) 96-8p. “A

‘regular and continuing basis’ means 8 hours a day, for 5 days a

week, or an equivalent schedule.” SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete

incapacity to be disabled. Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885

F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work she has done in the past. 20 C.F.R. § 416.920(a)(4)(iv). 

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine

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whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 416.920(a)(4)(v). See also

Keyser, 648 F.3d at 724-25. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 

The Commissioner may satisfy this burden through the testimony of

a VE or by reference to the Medical-Vocational Guidelines set

forth in the regulations at 20 C.F.R. part 404, subpart P,

appendix 2. If the Commissioner meets this burden, the claimant

is not disabled. 20 C.F.R. § 416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since her September 26, 2011,

application date. Tr. 24.

At Step Two the ALJ found Plaintiff has the severe

impairments of degenerative disc disease of the lumbar spine,

migraines, obesity, borderline intellectual function, anxiety

disorder, and affective disorder. Tr. 24-25.

At Step Three the ALJ concluded Plaintiff’s medically

determinable impairments do not meet or medically equal one of

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

1. Tr. 25-27. 

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In his assessment of Plaintiff’s RFC, the ALJ found

Plaintiff can perform light work except she cannot climb ladders,

ropes, or scaffolds; can frequently kneel and crouch, but cannot

crawl; can balance and climb ramps and stairs on an unlimited

basis; must avoid exposure to hazards, fumes, odors, dust, gases,

and unventilated areas; can only perform “simple, repetitive

tasks with no requirement to read or write reports; and can

maintain concentration for two-hour intervals. Tr. 27-33.

At Step Four the ALJ concluded Plaintiff does not have any

past relevant work. Tr. 33. 

At Step Five, however, the ALJ found Plaintiff is capable of

performing other jobs existing in the national economy as a

bicycle assembler, garment folder, or “cleaner/housekeeper.”. 

Tr. 33-34. In the alternative, assuming Plaintiff was only

capable of performing sedentary work, the ALJ concluded Plaintiff

is capable of performing other jobs existing in the national

economy such as a printed circuit-board screener or printed

circuit-layout taper. Tr. 34. Accordingly, the ALJ found

Plaintiff is not disabled.

DISCUSSION

Plaintiff contends the ALJ erred when (1) she failed to

develop the record with regard to Plaintiff’s fibromyalgia and,

accordingly, failed to conclude fibromyalgia is a severe

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impairment at Step Two; (2) she did not conclude Plaintiff is

disabled at Step Three of the sequential analysis based on

Plaintiff’s intellectual disability; (3) she discredited

Plaintiff’s testimony without providing legally sufficient

reasons for doing so; (4) she discredited the lay testimony of

Plaintiff’s partner, Kayla Jordan, and friend, Barbara Dodge,

without providing legally sufficient reasons for doing so; and

(5) she concluded Plaintiff is not disabled based on an

assessment of Plaintiff’s RFC that did not include the

limitations contained in the testimony of Plaintiff, Jordan,

Dodge, and Jordan Isaac Roth, M.D.

I. Step Two

As noted, Plaintiff contends the ALJ erroneously concluded

at Step Two that Plaintiff’s fibromyalgia is not a severe

impairment because the ALJ failed to develop the record as to

that issue.

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments that are expected to

last for a continuous period of at least 12 months. Stout v.

Comm’r Soc. Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). See

also 20 C.F.R. § 416.920(a)(4)(ii); Keyser, 648 F.3d at 724. A

severe impairment “significantly limits” a claimant’s “physical

or mental ability to do basic work activities.” 20 C.F.R. 

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§ 416.921(a), (b). Such abilities and aptitudes include walking,

standing, sitting, lifting, pushing, pulling, reaching, carrying,

handling, seeing, hearing, and speaking; understanding, carrying

out, and remembering simple instructions; using judgment;

responding appropriately to supervisors, co-workers, and usual

work situations; and dealing with changes in a routine work

setting. Id.

The Step Two threshold is low:

[A]n impairment can be considered as not severe only if

it is a slight abnormality which has such a minimal

effect on the individual that it would not be expected

to interfere with the individual’s ability to work 

. . . . [T]he severity regulation is to do no more

than allow the Secretary to deny benefits summarily to

those applicants with impairments of a minimal nature

which could never prevent a person from working.

SSR 85-28, at *2 (Nov. 30, 1984)(internal quotations omitted).

When the Commissioner proceeds beyond Step Two, the

Commissioner’s failure to include any medical condition at Step

Two is harmless if the ALJ considered that condition when

formulating the claimant’s RFC and when reaching the disability

determination at Step Four or Five. See Lewis v. Astrue, 498

F.3d 909, 911 (9th Cir. 2007).

There are two alternative ways an ALJ may determine

fibromyalgia is a severe impairment at Step Two. With respect to

the first criterion the claimant must establish: (1) “A history

of widespread pain . . . that has persisted . . . for at least 3

months”; (2) “[a]t least 11 positive tender points on physical

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examination”; and (3) “[e]vidence that other disorders that could

cause the symptoms or signs were excluded.” SSR 12-2P, 2012 WL

3104869, at *2-*3 (Jul. 25, 2012). Alternatively, a claimant

meets her burden of establishing fibromyalgia is a severe

impairment at Step Two if the record reflects the claimant has: 

(1) “A history of widespread pain”; (2) “[r]epeated

manifestations of six or more FM symptoms, signs, or co-occurring

conditions, especially manifestations of fatigue, cognitive or

memory problems (“fibro fog”), waking unrefreshed, depression,

anxiety disorder, or irritable bowel syndrome”; and (3)

“[e]vidence that other disorders that could cause these repeated

manifestations of symptoms, signs, or co-occurring conditions

were excluded.” Id., at *3.

Plaintiff does not contend the ALJ erred when she found

Plaintiff had not established either of the criteria under SSR

12-2P. Instead Plaintiff contends the ALJ erred because she

concluded Plaintiff’s fibromyalgia did not meet the requirements

of SSR 12-2P without further developing the record.

The ALJ bears the burden of developing the record. Reed v.

Massanari, 270 F.3d 838, 841 (9th Cir. 2001). See also Camky v.

Colvin, No. 6:12-cv-01973 BR, 2013 WL 6243503, at *5 (D. Or. 

Dec. 2, 2013). When important medical evidence is incomplete,

the ALJ has a duty to re-contact the provider for clarification. 

20 C.F.R. § 416.927(c)(2). When making disability

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determinations,

[i]f the evidence is consistent but we do not have

sufficient evidence to decide whether you are disabled,

or if after weighing the evidence we decide we cannot

reach a conclusion about whether you are disabled, we

will try to obtain additional evidence. . . . We will

request additional existing records, recontact your

treating sources or any other examining sources, ask

you to undergo a consultative examination at our

expense, or ask you or others for more information.

20 C.F.R. § 416.927(c)(3). The decision whether to request a

consultative examination is within the discretion of the ALJ. 

See 20 C.F.R. § 919a (“A consultative examination may be

purchased when the evidence as a whole, both medical and

nonmedical, is not sufficient to support a decision on your

claim.”). “An ALJ ha[s] no duty to develop the record . . .

where the evidence was not ambiguous and the record was not

inadequate to allow for proper evaluation of the evidence.” 

Coleman v. Colvin, No. 12-35207, 2013 WL 1694757, at *1 (9th Cir.

Apr. 19, 2013). See also Ludwig v. Astrue, 681 F.3d 1047, 1055

n.30 (9th Cir. 2012)(“‘An ALJ’s duty to develop the record

further is triggered only when there is ambiguous evidence or

when the record is inadequate to allow for proper evaluation of

the evidence.’”)(quoting Mayes v. Massanari, 276 F.3d 453, 459-60

(9th Cir. 2001)).

Here the ALJ’s duty to develop the record was not triggered

because the medical evidence was not ambiguous. Although there

are multiple references to an apparent past diagnosis in the

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medical record of Plaintiff as having fibromyalgia, the record

does not contain evidence sufficient to establish either of the

criteria under SSR 12-2P. The evidence, therefore, was not

ambiguous nor “inadequate to allow for the proper evaluation of

the evidence,” but instead fell short in establishing the

criteria necessary to conclude that Plaintiff’s fibromyalgia

qualifies as a severe impairment. See Ludwig, 681 F.3d at 1055

n.30. The ALJ, therefore, did not err by failing to develop the

record further as to Plaintiff’s fibromyalgia.

In the alternative, even if the ALJ erred by excluding

fibromyalgia at Step Two, that error would be harmless because

the ALJ considered the totality of Plaintiff’s physical

limitations when she evaluated Plaintiff’s RFC. See Lewis, 498

F.3d at 911 (9th Cir. 2007).

Accordingly, on this record the Court concludes the ALJ did

not err when she did not include fibromyalgia as a severe

impairment at Step Two.

II. Step Three

At Step Three the Commissioner must determine whether a

claimant’s impairments meet or equal one of the listed

impairments; are so severe that they preclude substantial gainful

activity; and, therefore, render the claimant disabled. 20

C.F.R. § 416.920(a)(4)(iii). See also Keyser v. Comm’r of Soc.

Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). The criteria for

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the listed impairments, known as Listings, are enumerated in 20

C.F.R. part 404, subpart P, appendix 1 (Listed Impairments). 

Social Security Ruling (SSR) 96-6p provides in pertinent part:

[L]ongstanding policy requires that the judgment of a

physician (or psychologist) designated by the

Commissioner on the issue of equivalence on the

evidence before the administrative law judge or the

Appeals Council must be received into the record as

expert opinion evidence and given appropriate weight.

In addition, the Ninth Circuit has held generalized

assertions of functional problems are insufficient to establish

that a claimant meets or equals a Listing at Step Three. See,

e.g., Reed-Goss v. Astrue, 291 F. App’x 100, 101 (9th Cir.

2008)(“‘To meet a listed impairment, a claimant must establish

that he or she meets each characteristic of a listed impairment

relevant to his or her claim.’”)(quoting Tackett v. Apfel, 180

F.3d 1094, 1099 (9th Cir. 1999)).

When represented by counsel at the administrative hearing,

“appellants must raise issues at their administrative hearings in

order to preserve them on appeal before this Court.” Meanel v.

Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). See also Phillips v.

Colvin, 593 F. App’x 683, 684 (9th Cir. 2015). The court will

excuse such a failure to preserve an issue at the administrative

level, however, if doing so is “necessary to avoid a manifest

injustice.” Meanel, 172 F.3d at 1115.

Plaintiff waived any assertion of error at Step Three,

however, when Plaintiff’s counsel stated at the hearing:

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So in short we’re looking at a step five determination,

Your Honor. I don’t believe that [Plaintiff] meets and

equals any particular listing in her – its severity,

but her moderate limitations and in some cases with her

borderline IQ should suggest, as well of course of her

functioning, her GAF scores have never really reached

60, suggests that we have somebody with some — severe

deficits in being able to function even in daily

activities.

Tr. 45. Plaintiff’s express disavowal of the possibility that

Plaintiff’s impairments meet or equal any listing at Step Three

(including any listing related to intellectual disability)

represents a waiver of this issue. Moreover, in light of

Plaintiff’s express disavowal of a finding of disability at Step

Three and the limited evidence in the record regarding

Plaintiff’s intellectual disability, the Court concludes excusal

of the failure to preserve this issue is not “necessary to avoid

a manifest injustice.” Meanel, 172 F.3d at 1115.

Accordingly, on this record the Court concludes the ALJ did

not err when she found Plaintiff’s impairments did not meet or

equal any listing at Step Three.

III. Plaintiff’s Credibility

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment

or combination of impairments could reasonably be expected to

produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th

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Cir. 1986). See also Spelatz v. Astrue, 321 F. App’x 689, 692

(9th Cir. 2009). The claimant, however, need not produce

objective medical evidence of the actual symptoms or their

severity. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 

See also Delgado v. Commissioner of Social Sec. Admin., 500 F.

App’x 570, 570 (9th Cir. 2012).

If the claimant satisfies the above test and there is not

any affirmative evidence of malingering, the ALJ can reject the

claimant’s pain testimony only if she provides clear and

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)). General assertions that the claimant’s

testimony is not credible are insufficient. Id. The ALJ must

identify “what testimony is not credible and what evidence

undermines the claimant's complaints.” Id. (quoting Lester, 81

F.3d at 834).

At the August 7, 2013, hearing Plaintiff testified she has

been unable to work on account of “pain issues,” including

fibromyalgia and migraine headaches. Tr. 49-50. Plaintiff

testified she experiences “pain or pressure from head to toe”

although a “large majority” of her pain was in her back at the

time of the hearing. Tr. 50. Plaintiff stated she is able to

walk around her neighborhood “one to two times a week depending

on the severity of [her] pain,” and is able to walk enough to go

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to the grocery store. Tr. 51. Plaintiff testified she helps

with household activities like washing dishes, dusting, and

sweeping, but her partner completes most of the chores. Tr. 56-

57. In addition, Plaintiff reported she frequently has

difficulty getting sleep as a result of her sleep apnea, and the

lack of sleep makes it “harder for [her] to function and be able

to concentrate.” Tr. 66. 

Plaintiff testified she “kept a food activity journal” in

the past to help her doctors treat her chronic-pain and migraine

headaches. Tr. 58. Plaintiff stated she has difficulty

completing paperwork because it is “a point of anxiety and

frustration,” and her partner completed her disability forms for

her. Tr. 60-63. As a result of her anxiety and PTSD, Plaintiff

testified she does not leave her house “unless [she] absolutely

[has] to.” Tr. 66. Plaintiff stated she watches movies with her

partner and completes puzzles, but she does not play card games

“due to some abuse issues” that she experienced in childhood. 

Tr. 53-54, 59.

In her Adult Function Report dated October 26, 2011,

Plaintiff stated she requires frequent rest while performing

daily chores, and she is unable to bend, walk, lift items, and

sweep and mop floors. Tr. 212. Plaintiff stated she is able to

help with cleaning and laundry, but she requires rest during

those activities and, as a result, chores take longer. Tr. 215. 

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Plaintiff reported her social activities include watching

television and movies, playing cards and board games, listening

to music, and completing arts and crafts. Tr. 216. Plaintiff

indicated her conditions affect her ability to lift, squat, bend,

stand, reach, walk, sit, kneel, talk, climb stairs, remember,

complete tasks, concentrate, understand, following instructions,

use her hands, and get along with others. Tr. 217. Plaintiff

reported she can only walk one or two blocks before requiring 15-

20 minutes of rest. Tr. 217.

The ALJ discredited Plaintiff’s testimony because it was

inconsistent with findings in the medical record, Plaintiff

demonstrated poor effort in medical examinations and failed to

seek mental-health services that were available to her, Plaintiff

made inconsistent statements about her daily activities and past

medical treatment, and Plaintiff’s testimony that her partner

filled out Plaintiff’s disability paperwork was contradicted by

the presence of two different handwriting styles on the forms. 

Tr. 28-31.

The ALJ correctly noted Plaintiff made inconsistent

statements regarding her daily activities and past medical

treatment. For example, as the ALJ noted, Plaintiff testified

she had a psychiatric hospitalization in 2011, but the record

does not contain any record of psychiatric hospitalization. Tr.

365, 428. Moreover, the ALJ reasonably found Plaintiff’s hearing

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testimony that she does not play card games was inconsistent with

her report in his Adult Function Report in which Plaintiff listed

playing card games as among her social activities. Tr. 59, 216. 

As the ALJ noted, throughout much of the period relevant to

Plaintiff’s disability application, medical examination findings

did not indicate Plaintiff suffered from the full extent of

limitations that Plaintiff alleged as a result of her back pain. 

See, e.g., Tr. 257 (Plaintiff can walk several blocks albeit with

exacerbated back pain and can perform household chores and care

for her partner), Tr. 504 (back pain “is at baseline”), Tr. 517

(Plaintiff doing a “fair amount of walking”). Although

Plaintiff’s back pain appears to have worsened acutely in

February 2013 “after carrying large bags of groceries and riding

the bus,” the ALJ reasonably concluded Plaintiff’s allegations of

significant limitations due to back pain dating back to 2011 are

not fully supported by the medical record.

Moreover, the ALJ correctly noted instances in which

Plaintiff demonstrated poor effort on examination. On 

February 18, 2013, Dr. Roth indicated Plaintiff demonstrated

“[p]oor effort on [lower extremity] strength testing,” and on

February 3, 2012, Plaintiff was “[u]nwilling to participate in

other range of motion testing.” Tr. 458, 518. Moreover, the ALJ

correctly stated Plaintiff failed to follow up on mental-health

treatment services that were available to her; for example, on

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two occasions Plaintiff was discharged from treatment at

LifeWorks NW for failure to follow up shortly after initiating

treatment. Tr. 246-47, 378-79.

After reviewing the record, the Court concludes the ALJ

provided clear and convincing reasons for discrediting

Plaintiff’s testimony. Accordingly, on this record the Court

concludes the ALJ did not err when she discounted Plaintiff’s

testimony because the ALJ cited legally sufficient reasons for

doing so.

IV. Lay Testimony

When determining whether a claimant is disabled, the ALJ

must consider lay-witness testimony concerning a claimant’s

limitations and ability to work. Molina v. Astrue, 674 F.3d

1104, 1114 (9th Cir. 2012). If the ALJ wishes to discount the

testimony of lay-witnesses, he “must give reasons that are

germane to each witness.” Id. (quoting Nguyen v. Chater, 100 F.3d

1462, 1467 (9th Cir. 1996)). See also Lester v. Chater, 81 F.3d

821, 834 (9th Cir. 1995)(improperly rejected lay-witness

testimony is credited as a matter of law). 

Although the ALJ’s reasons for rejecting lay-witness

testimony must be “specific,” Stout v. Comm’r, Social Sec.,

Admin., 454 F.3d 1050, 1054 (9th Cir. 2006), the ALJ need not

discuss every witness’s testimony on an individualized basis. 

Molina, 674 F.3d at 1114. “[I]f the ALJ gives germane reasons

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for rejecting testimony by one witness, the ALJ need only point

to those reasons when rejecting similar testimony by a different

witness.” Id. See also Valentine v. Comm’r Soc. Sec. Admin.,

674 F.3d 685, 690 (9th Cir. 2009).

A. Testimony of Barbara Dodge

In a Third Party Function Report dated October 25, 2011,

Plaintiff’s friend, Barbara Dodge, reported Plaintiff “has

chronic pain and it gets to the point where she can barely move.” 

Tr. 204. Dodge stated Plaintiff’s migraines prevent her from

doing anything more than sleeping and staying in dark, quiet

areas. Tr. 204. Dodge stated Plaintiff performs a “small

amount” of daily chores at a time, but needs help with tasks that

require bending and/or carrying heavy items. Tr. 206. Dodge

reported Plaintiff’s hobbies include watching television, doing

arts and crafts, and playing with Dodge’s son. Tr. 208. Dodge

indicated Plaintiff’s conditions affect her abilities to lift,

squat, bend, stand, reach, walk, sit, kneel, climb stairs,

remember, concentrate, complete tasks, and get along with others. 

Tr. 209. Dodge reported Plaintiff can only walk “a few blocks”

before requiring “a few minutes” of rest. Tr. 209.

The ALJ discredited Dodge’s testimony on the basis that

because Dodge’s complaints “reflect essentially the same

allegations made by the claimant,” Dodge’s allegations are not

credible for many of the same reasons that the ALJ provided when

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she discredited Plaintiff’s testimony. Tr. 32. The Court finds

the ALJ reasonably concluded many of the same reasons that the

ALJ provided to discredit Plaintiff’s testimony also undercut

Dodge’s allegations. 

Accordingly, on this record the Court concludes the ALJ did

not err when she discredited Dodge’s testimony because the ALJ

provided legally sufficient reasons for doing so.

B. Testimony of Kayla Jordan

Plaintiff’s partner, Kayla Jordan, submitted a letter dated

July 9, 2013, in which Jordan stated Plaintiff suffers memory

loss, PTSD, and anxiety. Tr. 240. As a result, Jordan stated

Plaintiff experiences mood instability, does not adapt to change

well, rarely leaves home, avoids large crowds, and could not work

in any public setting. Tr. 240-41. In addition, Jordan reported

Plaintiff requires help in the bathroom and with dressing, and it

takes her an unusually long time to accomplish chores because of

her chronic pain and migraine headaches. Tr. 240.

The ALJ discredited Jordan’s testimony for the same reasons

that the ALJ provided when she rejected Plaintiff’s testimony. 

In addition, the ALJ reasoned Jordan may have secondary-gain

motivations because Jordan was expecting Plaintiff to use her

disability benefits to repay certain debts held by Jordan. 

Although the Court does not conclude the record is sufficient to

support the ALJ’s finding of a potential secondary-gain

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motivation, the Court finds the ALJ correctly concluded many of

the same reasons that the ALJ provided to discredit Plaintiff’s

testimony also undercut Jordan’s allegations.

Accordingly, on this record the Court concludes the ALJ did

not err when she discredited Jordan’s testimony because the ALJ

provided legally sufficient reasons for doing so.

V. Step Five Error

Plaintiff asserts the ALJ erred at Step Five because the

ALJ’s assessment of Plaintiff’s RFC did not account for the

allegations contained in the testimony of Plaintiff, Dodge, and

Jordan or the opinion submitted by Dr. Roth.2 Because the Court

concluded the ALJ provided legally sufficient reasons for

discrediting the testimony that Plaintiff relies on, the ALJ did

not err in formulating her assessment of Plaintiff’s RFC or in

concluding Plaintiff is capable of performing other work

available in the national economy.

On this record, therefore, the Court concludes the ALJ did

not err at Step Five.

2 Plaintiff does not independently assign error to the ALJ

for giving little weight to Dr. Roth’s opinion. See Tr. 32, 434-

39. Nonetheless, the reasons that the ALJ provided for

discrediting Dr. Roth’s testimony constitute specific and

legitimate reasons for doing so, and, accordingly, the ALJ did

not err when considering Dr. Roth’s opinion.

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CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter with prejudice.

IT IS SO ORDERED.

DATED this 12th day of May, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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