IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LAURA D. GIFFIN, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Commissioner of Social Security, 

Defendant. 

PAPAK, Magistrate Judge: 

PORTLAND DIVISION 

Civil No. 6:15-cv-00800-PK 

FINDINGS AND 

RECOMMENDATION 

Plaintiff Laura D. Giffin filed this action May 11, 2015, seeking judicial review of the 

Commissioner of Social Security's final decision denying her application for disability insurance 

benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social 

Security Act. This court has jurisdiction over plaintiff's action pursuant to 42 U.S.C. § 405(g) 

and l383(c)(3). 

Page 1 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 1 of 22
I have considered all of the parties' briefs and all of the evidence in the administrative 

record. For the reasons set forth below, the Commissioner's final decision should be affirmed. 

BACKGROUND 

Giffin protectively filed her applications on July 31, 2012, alleging disability beginning 

on November 30, 2010, due to "diabetes/asthma, depression/anxiety, ob/gyn, sleep apnea, ulcers, 

high cholesterol, mtlu·itis, [and] neuropathy." Tr. 247. The Commissioner denied her 

application initially and upon reconsideration; thereafter, she requested a hearing before an 

Administrative Law Judge (ALJ). Tr. 160-61, 36-70. At the Janumy 15, 2014, hearing Plaintiff 

amended her onset date to June 27, 2012. Tr. 40. On Februmy 11, 2014, the ALJ found Giffin 

not disabled. Tr. 15-35. The Appeals Council denied review, and on May 11, 2015, Giffin 

sought review in this comt. 

Giffin contends the ALJ erred by failing to find bipolar disorder and recurrent major 

depression severe at step two, by finding her less than fully credible, by failing to give proper 

weight to medical evidence, by failing to develop the record, and by failing to properly assess 

her residual functional capacity after completing step tlu·ee, and for that reason erred by finding 

Giffin capable of performing work at step five of the process. 

DISABILITY ANALYSIS FRAMEWORK 

To establish disability within the meaning of the Act, a claimant must demonstrate an 

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

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

less than 12 months." 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step 

sequential process for determining whether a claimant has made the requisite demonstration. See 

Page 2 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 2 of 22
Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. §§ 404.1520(a)(4), 

416.920(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only 

at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v. 

Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 

At the first step, the Administrative Law Judge ("ALJ") considers the claimant's work 

activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(I), 

416.920(a)(4)(I). If the ALJ finds that the claimant is engaged in substantial gainful activity, the 

claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 

404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(I), 416.920(b). Otherwise, the evaluation will 

proceed to the second step. 

At the second step, the ALJ considers the medical severity of the claimant's impairments. 

See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An 

impairment is "severe" if it significantly limits the claimant's ability to perform basic work 

activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. 

at 141; see also 20 C.F.R. §§ 404.1520(c), 416.920(c). The ability to perform basic work 

activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 

404.1521(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's impairments 

are not severe or do not meet the duration requirement, the claimant will be found not disabled. 

See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c). 

Nevertheless, it is well established that "the step-two inquiry is a de minimis screening device to 

dispose of groundless claims." Smolen v. Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996), citing 

Bowen, 482 U.S. at 153-154. "An impairment or combination of impairments can be found 'not 

Page 3 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 3 of 22
severe' only if the evidence establishes a slight abnormality that has 'no more than a minimal 

effect on an individual[']s ability to work." Id, quoting S.S.R. 85-28, 1985 SSR LEXIS 19 

(1985). 

If the claimant's impairments are severe, the evaluation will proceed to the third step, at 

which the ALJ determines whether the claimant's impairments meet or equal "one of a number of 

listed impairments that the [Commissioner] acknowledges are so severe as to preclude 

substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 

404.1520(d), 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one 

of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. I, the claimant will 

conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 

404.1520(a)( 4)(iii), 404.1520( d), 416.920(a)( 4)(iii), 416.920( d). 

If the claimant's impairments are not equivalent to one of the enumerated impairments, 

between the third and the fourth steps the ALJ is required to assess the claimant's residual 

functional capacity ("RFC"), based on all the relevant medical and other evidence in the 

claimant's case record. See 20 C.F.R. § 404.1520(e), 416.920(e). The RFC is an estimate of the 

claimant's capacity to perform sustained, work-related physical and/or mental activities on a 

regular and continuing basis, 1 despite the limitations imposed by the claimant's impairments. See 

20 C.F.R. §§ 404.1545(a) 416.945(a); see also S.S.R. No. 96-8p, 1996 SSRLEXIS 5 (July2, 

1996). 

1 "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an 

equivalent work schedule." S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996). 

Page 4 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 4 of 22
At the fomih step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 

404.1520(a)(4)(iv), 416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that 

the claimant can still perform his or her past relevant work, the claimant will be found not 

disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 

416.920(a)(4)(iv), 416.920(f). In the event the claimant is no longer capable of performing his 

or her past relevant work, the evaluation will proceed to the fifth and final step, at which the 

burden of proof shifts, for the first time, to the Commissioner. 

At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's age, education, and work experience to determine whether a person with those 

characteristics and RFC could perform any jobs that exist in significant numbers in the national 

economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 

404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. If the Commissioner 

meets her burden to demonstrate the existence in significant numbers in the national economy of 

jobs capable of being performed by a person with the RFC assessed by the ALJ between the third 

and fomih steps of the five-step process, the claimant is found not to be disabled. See Bowen, 

482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404,1520(g), 404.1560(c), 404.1566, 

416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. A claimant will be found entitled to benefits 

ifthe Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see 

also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g). 

LEGAL STANDARD 

Page 5 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 5 of 22
A reviewing couti must affirm an Administrative Law Judge's decision if the ALJ applied 

proper legal standards and his or her findings are supp01ied by substantial evidence in the record. 

See 42 U.S.C. § 405(g); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 

(9th Cir. 2004 ). "'Substantial evidence' means more than a mere scintilla, but less than a 

preponderance; it is such relevant evidence as a reasonable person might accept as adequate to 

support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing 

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 

The court must review the record as a whole, "weighing both the evidence that supports 

and the evidence that detracts from the Commissioner's conclusion." Id, quoting Reddick v. 

Chafer, 157 F.3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of 

the Commissioner. See id., citing Robbins, 466 F.3d at 882; see also Edlund v. Massanari, 253 

F.3d 1152, 1156 (9th Cir. 2001). Moreover, the couti may not rely upon its own independent 

findings of fact in determining whether the ALJ's findings are supp01ied by substantial evidence 

ofrecord. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC v. Chene1y 

Corp., 332 U.S. 194, 196 (1947). If the ALJ's interpretation of the evidence is rational, it is 

immaterial that the evidence may be "susceptible [of] more than one rational interpretation." 

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d 

1450, 1453 (9th Cir. 1984). 

SUMMARY OF ADMINISTRATIVE RECORD2 

2 The following recitation constitutes a summaiy of the evidence contained within the 

Administrative Record, and does not reflect any independent finding of fact by the co mi. 

Page 6 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 6 of 22
Giffin was 34 years old on her alleged onset date of June 27, 2012. Tr. 28.3 She 

previously filed applications for disability in September 2005 and October 2010, which were 

denied at the initial determination level without appeal. She has a ninth grade education, and has 

worked as a cook and an institutional cook. Tr. 63. 

I. The Medical Record 

The parties are familiar with the extensive medical record. Therefore, it will be set out 

below when relevant. 

II. The Adult Function Report 

Plaintiff completed an Adult Function Report in December 2010 in which she stated it 

was "hard and vety painful" to stand all day at work, and hard to concentrate on her job due to 

fatigue. Tr. 261. She worked as an institutional cook from 5:00 a.m. to about 1 :00 p.m., and 

napped after work. Her son helped her clean the house, do laundty, and cook meals. She could 

no longer walk for exercise, and pain interfered with her sleep sometimes. Tr. 262. It was hard 

to tie her shoes because bending over caused pain, and difficult to get into and out of the bath 

tub. Plaintiff prepared simple meals weekly because she was too tired or in too much pain to 

prepare a full meal. Tr. 263. She did her laundry, cleaned her bedroom and bathroom, and 

sometimes loaded the dishwasher or straightened up the living room. Tr. 264. She did not do 

yard work because it was too hard to get up and down to pull weeds, and mowing hurt her legs. 

Plaintiff stated that she does not drive very much because it made her legs and feet hurt. 

She could go out alone but did not like to go anywhere by herself. She shopped for household 

3 Citations to "Tr." refer to the page(s) indicated in the official transcript of the 

administrative record filed herein as Docket No. 14. 

Page 7 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 7 of 22
supplies twice a month for about 45 minutes and groce1y shopped about once a week for about an 

hour and a half. She watched television and worked on a computer, but no longer hiked, fished, 

or swam. She usually had someone go with her to stores ']ust in case something goes wrong." 

Tr. 265. Plaintiff no longer saw friends because she was either too tired or in too much pain. Tr. 

266. She could walk about a block before resting for five minutes, and could pay attention "as 

long as I am needed to." Tr. 266. Plaintiff stated she did not handle stress well, it made her 

sick, and changes in routine caused anxiety and panic attacks. She used a motor cart while 

shopping in stores, and used a cane. Plaintiff denied that her medications caused side effects. 

Plaintiff noted she had many health issues, and said because she had diabetes, she had a 

lot of colds, bronchitis, and "bacterial infections, bladder infections, and pelvic infections." Tr. 

268. "I have to make myself get up every morning and go to work even when I'm sick or in pain 

cause I have to have income to support my family. I think it would be a lot better for my family 

and me ifI was to get SSD .... I certainly will feel betterifI didn't have to work." Tr. 268. 

III. The Hearing Testimony 

Plaintiff testified at the Januaiy 2014 hearing. She was represented by counsel. Tr. 38. 

Plaintiff completed the ninth grade. Tr. 41. She attempted to complete a GED "several times 

and I just couldn't do it." Id "I can't concentrate, and Ijust feel like I just can't do it." Ibid 

She was the lead cook at Levitan Care Center for six and a half years, until June 2012. 

Plaintiff did all of the cooking and "a lot of heavy lifting and standing on my feet all day long for 

eight hours straight, a lot of walking." Tr. 42-43. She wore a pedometer and averaged over 

20,000 steps per day. Before the job as lead cook she worked as a cook in a different care facility 

for nine months. 

Page 8 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 8 of 22
By the time her job at Levitan ended Plaintiff had trouble performing the work. Tr. 44. 

"It was hard to lift. It was hard to do anything; to stand, lift, walk, even just to cook. It was hard 

to serve the food." Id. Plaintiff had neuropathy in her legs and back pain. "And nobody could 

figure out what was wrong until here recently I just went to a neurologist and they found out that 

I have back problems. But I was having a lot of back pain." Tr. 45. Her entire back hurt, from 

the neck down, and "it was there all the time." Tr. 46. Lifting more than ten pounds made the 

pain worse. She put a step stool at the prep counter to rest one foot on. Her "whole body [hurt] 

just standing there." Tr. 4 7. Plaintiff had pain, numbness, and tingling in her legs and toes, 

worse at work than at home. She stayed in bed the rest of the day after work. The pain and 

numbness in her legs was made worse by"[ e ]verything," as the job required constant movement 

on a tight time line. 

Plaintiff took a leave of absence in June 2012 and then advised the care center that she 

was not coming back. Tr. 48. She explained that "towards the end I started making any excuse 

in the world not to go in because I staited getting to the point where I was in so much pain that I 

started having like panic attacks and anxiety attacks." Id. Once she almost passed out at work. 

She started feeling bad when it was time to go to work or while at work. "I didn't want to be 

there because I was in pain and ... I didn't feel good." Tr. 48-49. Panic attacks caused shortness 

of breath, dizziness, darkness, and light spots. She had mental problems while working, 

including depression, anxiety and panic attacks. Her boss was rude and she would cry. "I hated 

going there because I didn't want to have to deal with him." Tr. 50. She felt like she might pass 

out, had shottness of breath, and her face and ears got hot. 

Page 9 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 9 of 22
She sees a psychiatrist once a month. The doctor wants Plaintiff to attend a group 

counseling session, but Plaintiff testified "I can't handle a - - to be around a group because it's 

hard for me to be around people that I don't know." Tr. 52. It makes her nervous and she has 

panic attacks. Plaintiff goes shopping once a month but she does not like it. At least once or 

twice a month Plaintiff goes shopping but does not complete it because she leaves the store. Her 

doctor advised her to name her panic attacks, and Plaintiff calls the panic attacks "Kerry,'' which 

helps. She takes Clonidine and Klonopin, which make the symptoms less severe though they do 

not go away. Plaintiff was taking Zoloft, Abilify, and oxycodone, as well as multiple 

medications she could not name. Tr. 54. Sometimes the medications cause fatigue, though she 

also has insomnia. 

Plaintiffrepotted she had headaches at least once or twice a month. Tr. 55. She had been 

to urgent care twice in the past two days for headaches. When she has a headache she cannot 

function. The headaches can last for a week. She does "very little" around the house. Tr. 56. 

She washes some dishes. Her husband and teen-aged children do most of the work. Sometimes 

she statts the laundty, "it just depends on what date - - what kind of day it is for me, on how bad 

my back is, and how bad I feel. There's some days I don't even get out of bed." Tr. 57. At least 

once a month she is in bed for a couple of days because of pain, depression or headache. She 

spends her time watching television and playing games on her computer. Tr. 58. 

She can sit for about 20 minutes before she needs to move around "because when I sit 

down I feel like I'm squashing my tailbone." Id. She has no friends and no social activities. Her 

husband is on disability for bipolar disorder. Tr. 60-61. Plaintiff and her husband have been 

Page 10 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 10 of 22
together since 2011. Plaintiff testified that her back, leg and feet problems have not improved 

since she quit working. 

ALJ FINDINGS 

The ALJ applied the sequential disability determination process described above. At step 

one, the ALJ found Giffin had not engaged in substantial gainful activity from her alleged onset 

date of June 27, 2012. Tr. 20. 

At step two, the ALJ found Giffin had the severe impairments of degenerative disc 

disease, obstructive sleep apnea, peripheral neuropathy, asthma, obesity, and post-traumatic 

stress disorder (PTSD). Tr. 21-22. 

At step three, the ALJ concluded that Giffin's impairments do not meet or equal the 

criteria for any condition in the Listing oflmpairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1. Id. 

The ALJ found that Giffin had the RFC to perform light work, except she requires the ability to 

alternate her position at will. Tr. 24. She can occasionally climb stairs and ladders, and 

frequently bend, balance, kneel, crouch, and crawl. She should avoid concentrated exposure to 

hazards. She is limited to simple routine repetitive work with brief intermittent contact with the 

public. She could have occasional contact with coworkers and supervisors while doing goaloriented, rather than production pace work. 

At step four, the ALJ concluded Giffin was unable to perform any past relevant work. Tr. 

27-28. However, at step five, the ALJ found jobs exist in significant numbers in the national 

economy that Giffin can perform, including production assembler, office clerk, and a reduced 

number of cashier jobs. Tr. 28. As a result, the ALJ concluded Giffin is not disabled. 

Page 11 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 11 of 22
DISCUSSION 

I. The ALJ Did Not Err At Step Two 

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

or combination of impairments. Bowen,. 482 US 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 ifit does not 

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

404.152l(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 § 404.152l(b). 

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

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

severe" only ifthe 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, 841F2d303, 306 

(9'h Cir 1988) (adopting SSR 85-28). A physical or mental impairment must be established by 

medical 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. 

Plaintiff contends the ALJ erred by failing to include major depression, rule-out 

somatization disorder, and rule-out bipolar disorder, as severe impairments at step two. Plaintiff 

notes the ALJ did identify PTSD as severe at step two. Tr. 21-22. Plaintiff argues that some of 

the symptoms of depression, bipolar disorder, and somatization disorder may be similar to those 

found with PTSD, and contends that the diagnoses "present separate limiting effects, that, when 

Page 12 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 12 of 22
considered in combination, may produce significantly more functional limitations than were 

assessed in Plaintiff's residual capacity determination." Pit.' s Reply at 2. However, Plaintiff 

does not identify any functional limitations arising from depression, rule-out bipolar, or rule-out 

somatoform disorder diagnoses that differ from the symptoms arising from PTSD. 

The ALJ properly determined that Giffin had 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. 

II. The ALJ Did Not Err in Finding Plaintiff Less than Fully Credible 

The Ninth Circuit has developed a two-step process for evaluating the credibility of a 

claimant's own testimony about the severity and limiting effect of the claimant's symptoms. 

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ "must determine whether 

the claimant has presented objective medical evidence of an underlying impairment which could 

reasonably be expected to produce the pain or other symptoms alleged." Lingenfelter, 504 F.3d 

at 1036. When doing so, the claimant "need not show that her impairment could reasonably be 

expected to cause the severity of the symptom she has alleged; she need only show that it could 

reasonably have caused some degree of the symptom." Smolen, 80 F.3d at 1282. 

Second, "if the claimant meets the first test, and there is no evidence of malingering, "' 

the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering 

specific, clear and convincing reasons for doing so."' Lingenfelter, 504 F.3d at 1036 (quoting 

Smolen, 80 F.3d at 1281 ). It is "not sufficient for the ALJ to make only general findings; he must 

state which pain testimony is not credible and what evidence suggests the complaints are not 

credible." Dodrill v. Shala/a, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be 

Page 13 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 13 of 22
"sufficiently specific to permit the reviewing coutt to conclude that the ALJ did not arbitrarily 

discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995)(citing 

Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991)(en bane)). 

The ALJ may consider objective medical evidence and the claimant's treatment history, 

as well as the claimant's daily activities, work record, and the observations of physicians and 

third patties with personal knowledge of the claimant's functional limitations. Smolen, 80 F.3d 

at 1284. The Commissioner recommends assessing the claimant's daily activities; the location, 

duration, frequency, and intensity of the individual's pain or other symptoms; factors that 

precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any 

medication, the individual receives or has received for relief of pain or other symptoms; and any 

measures other than treatment the individual uses or has used to relieve pain or other symptoms. 

See SSR 96-7p, available at 1996 WL 374186. 

Futiher, the Ninth Circuit has said that an ALJ also "may consider ... ordinary techniques 

of credibility evaluation, such as the reputation for lying, prior inconsistent statements 

concerning the symptoms ... other testimony by the claimant that appears less than candid [and] 

unexplained or inadequately explained failure to seek treatment or to follow a prescribed course 

of treatment[.]" Smolen, 80 F.3d at 1284. 

The ALJ found Plaintiff not entirely credible concerning the limiting effects of her 

symptoms. Tr. 25-26. The ALJ noted the medical evidence did not support the severity of 

limitations alleged by Plaintiff. Tr. 25-26. Minimal objective findings can undermine a 

claimant's credibility when, as here, other reasons are present. Burch v. Barnhart, 400 F.3d 676, 

680-81 (9th Cir. 2005). Plaintiff alleged back and leg pain were her greatest physical 

Page 14 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 14 of 22
impediments to working. Tr. 45. She testified she could lift ten pounds or less. Tr. 46. But in 

July and August 2012, Thomas Tluall, M.D., examined Plaintiff and concluded she could return 

to work on modified duty, full-time with a 30 pound lifting restriction. Tr. 25, 597-601. There 

was no back spasm and mild limitation of the range of motion. Tr. 597, 599. 

In July 2012, Plaintiff was seen in the emergency room for an abrasion, and ambulated 

without difficulty. Tr. 676. In September 2012, Plaintiff reported increased leg pain and stress 

but Dr. Hindmarsh found no muscle atrophy and muscle strength 5/5 tluoughout with normal 

tone and symmetry. Tr. 613. In October 2012, Kolby Walker, M.D., found Plaintiff able to 

recall tlu·ee out oftlu·ee items immediately and after delay, could calculate serial threes without 

difficulty, and appropriately interpreted proverbs and similarities. Tr. 25-26, 647. The following 

month Plaintiff denied significant disturbance with anxiety, her mood was okay and her affect 

less anxious. Tr. 644. She displayed mild anxiety symptoms. 

In early March 2013, Plaintiff was seen at urgent care for back "pain after bowling." Tr. 

818. An MRI of the cervical spine showed "mild" findings with no significant stenosis or 

encroachment. Tr. 634. Plaintiff was seen by neurologist Sydney Piercey, M.D., on June 3, 

2013. Tr. 659-61. Plaintiffrepo1ted leg weakness but was trying to walk daily. Tr. 659. Dr. 

Piercey reviewed the MRI and noted Plaintiff had normal concentration and mem01y. Tr. 660. 

Plaintiff had a full range of motion in the neck, with bilateral lower extremity "diffuse breakaway 

weakness difficult to objectively grade." Id 

On March 27, 2013, Plaintiff was seen in the emergency room for vaginal bleeding. Tr. 

689. The physician noted "It is very difficult to penetrate this lady's belief system about her 

anatomy and physiology .... She did not find my explanation persuasive .... " Tr. 691. In 

Page 15 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 15 of 22
August 2013, Plaintiff was seen in the emergency room for a headache. Tr. 691. She denied 

back pain. Tr. 693. Plaintiff had a normal range of neck motion, normal strength and reflexes, 

and normal mood and affect. Tr. 694. In September 2013, Plaintiff was seen in the emergency 

room for a headache. Tr. 695. She had no back pain, joint swelling, or gait problem. Tr. 698. 

She had normal mood, affect, cognition, and memory. Tr. 699. The following month Plaintiff 

had a happy, bright affect, with intact cognition. Tr. 786. On November 23, 2013, Plaintiff was 

seen in the emergency room for a sore throat, with a normal mood and affect, attention span and 

concentration. Tr. 788-89. 

The medical records fail to suppoti the severity of symptoms Plaintiff alleged. The ALJ 

properly found this discrepancy to be a clear, convincing, specific, legitimate reason to find 

Plaintiff less than fully credible. 

The ALJ found Plaintiff rep01ied improvement with medication and treatment. Tr. 26. 

In April 2013, Plaintiff no longer needed medication for sleep, and Clonidine and Lexapro 

"decreased her depression and anxiety sufficiently." Tr. 639. The following month Plaintiff 

reported "significant improvement in panic attacks." Tr. 905. Through 2013, Plaintiff frequently 

had normal mood, affect, attention, and concentration. Tr. 792, 795, 809, 837. 

The ALJ properly found Plaintiffs symptoms improved with medication and treatment, 

and this is a clear, convincing, specific and legitimate reason to find Plaintiff less than fully 

credible. 

Finally, the ALJ noted that Plaintiff acted as a caregiver for her mother-in-law, which 

suggested greater physical ability than Plaintiff reported. Tr. 26, 895, 899, 906. Daily activities 

Page 16 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 16 of 22
inconsistent with alleged symptoms are a relevant credibility consideration. See Rollins v. 

Massanari, 261F.3d853, 857 (9th Cir. 2001). 

On this record, the ALJ provided clear, convincing, specific and legitimate reasons to find 

Plaintiff less than fully credible. The ALJ' s credibility finding is supported by substantial 

evidence and should be affirmed. 

III. The ALJ Properly Weighed the Medical Evidence 

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

416.927(e)(l). Ifno 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. Chafer, 81 F.3d 821, 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 v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 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 reject it only for clear and convincing reasons. Id. (treating 

physician); Widmarkv. Barnhart, 454 F.3d 1063, 1067 (9th 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 suppotied by substantial evidence in the record. 

Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. The opinion of a 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 physician opinions 

Page 17- FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 17 of 22
that are "brief, conclusory, and inadequately supported by clinical findings." Bayliss v. Barnhart, 

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

A. Richard Hindmarsh, M.D. 

Plaintiff contends the ALJ erred in rejecting Dr. Hindmarsh's opinion. In Janua1y 2014 

Dr. Hindmarsh wrote a letter in which he stated that he believed Plaintiff "is no longer able to 

work on a full-time basis." Tr. 931. Dr. Hindmarsh noted diagnoses of bipolar affective 

disorder, PTSD, and pain secondary to fibromyalgia, and stated Plaintiff"remains in a state 

where she suffers from chronic pain and vety poor ability to concentrate. She would not be able 

to be gainfully employed at any job. She is also on medications that cause her to be fatigued to 

the degree that it would impact directly on her ability to work." Id 

In March 2014, a month after the ALJ's decision, Plaintiffs counsel wrote a letter, 

endorsed by Dr. Hindmarsh, memorializing a telephone conversation in which Dr. Hindmarsh 

stated he had treated Plaintiff since October 2007. Tr. 936. Plaintiff had been diagnosed with 

fibromyalgia before Dr. Hindmarsh met her, and Dr. Hindmarsh saw no reason to retest her for 

the condition .. Dr. Hindmarsh relied on August 2013 Linn County Mental Health records for the 

diagnosis of bipolar disorder. Dr. Hindmarsh noted that PTSD was a more common diagnosis in 

the records, and the symptoms of the conditions can be similar. Dr. Hindmarsh stated that 

Plaintiffs PTSD manifests as profound anxiety, he has observed the anxiety, and Plaintiff 

becomes upset easily and loses her train of thought. Tr. 937. Dr. Hindmarsh concluded Plaintiff 

"has been consistently and significantly impaired by the frequency and severity of her anxiety 

symptoms" since October 2007. The mental health records upon which Dr. Hindmarsh relied 

noted a rule-out diagnosis of bipolar disorder. Tr. 786. 

Page 18 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 18 of 22
The ALJ gave little or no weight to Dr. Hindmarsh's January 2014 opinion. Tr. 27. The 

ALJ noted there were no objective findings to support Dr. Hindmarsh's conclusions. "[W]hen 

evaluating conflicting medical opinions, an ALJ need not accept the opinion of a doctor if that 

opinion is brief, conclusory, and inadequately supported by clinical findings." Bayliss, 427 F.3d 

at 1216. The Commissioner points to Dr. Hindmarsh's records from September through 

December 2013 in which Plaintiff complained of a cold, leg swelling, a minor hip injmy, a rash, 

constipation, nausea, and headache. Tr. 847, 851, 855, 862, 871. In September 2013, Plaintiff 

complained of depression and she was prescribed Sertraline. Tr. 866-68. In October 2013, 

Plaintiffrep01ted anxiety and her dose ofSettraline was increased. Tr. 859-61. By late 

November and December Plaintiff had leg swelling, chest pain, and bronchitis but was described 

as alett, cooperative, and in no acute distress, with no complaints of depression or anxiety. Tr. 

853, 849. 

Although not considered by the ALJ, the comt may consider Dr. Hindmarsh's March 

2014 opinion to determine whether the ALJ' s decision is supported by substantial evidence. In 

that opinion Dr. Hindmarsh states that Plaintiff has "been consistently and significantly impaired 

by the frequency and severity of her anxiety symptoms since she became [my] patient in October 

2007, and those symptoms have gradually worsened over time." Tr. 937. Dr. Hindmarsh's 

opinion is contradicted by the fact that Plaintiff continued to work full-time from 2007 through 

June 2012. 

On this record, the comt should find the ALJ's rejection of Dr. Hindmarsh's opinion is 

supp01ted by clear and convincing reasons and supported by substantial evidence. 

B. The GAF Scores 

Page 19 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 19 of 22
The ALJ reasonably rejected the GAF scores due to their subjectivity. Tr. 27. At the 

time of Plaintiffs mental assessments, the GAF scale was used to rep01t a clinician's subjective 

judgment of the patient's overall level of functioning. See, Am. Psych. Ass'n., Diagnostic & 

Statistical Manual of Mental Disorder 31-34 (4th ed., text revision 2000)(DSM-IV-TR). The 

Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) abandoned 

the GAF scale in favor of standardized assessments for symptom severity, diagnostic severity, 

and disability. Am. Psych. Ass'n., Diagnostic & Statistical Manual of Mental Disorders 16 (5th 

ed. 2013). It was recommended the GAF be dropped from DSM-V for several reasons, including 

its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilties in its 

descriptors) and questionable psychometrics in routine practice. Id. 

The ALJ properly discounted the GAF scores because the scores include many factors, 

many of which have no bearing on occupational functioning. Tr. 27. A GAF score reflects the 

evaluator's subjective judgment about the person's symptom severity and psychological, social, 

and occupational functioning. See DSM-IV-TR at 32. If an individual's "symptom severity and 

level of functioning are discordant, the final GAF rating always reflects the worse of the two." 

Id. At 33. Because a low GAF score may have been based on an individual's self-rep01ted 

symptomatology or reflect difficulties in a wide range of functional areas, the ALJ' s 

determination to give those scores little weight should be found to be suppo1ted by substantial 

evidence. 

IV. The ALJ Did Not Have a Duty to Develop the Record Further 

Plaintiff contends the ALJ erred by failing to order a psychological evaluation. Plaintiff 

contends the record reveals diagnostic unce1tainty of her mental health diagnoses, and that she 

Page 20- FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 20 of 22
meets the diagnostic criteria for a Somatization Disorder. In November 2012 Dr. Walker noted 

"Rule out somatization disorder." Tr. 644. In November 2013 Nicole Desiderati, P.M.H.N.P. 

wrote "somatization disorder, rule out, bipolar disorder, rule out." Tr. 786. 

The ALJ' s duty to develop the record further is triggered when there is ambiguous 

evidence or when the ALJ finds that the record is inadequate to allow for proper evaluation of the 

evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The record is not 

ambiguous. Moreover, any error is harmless because the ALJ considered Plaintiffs pain 

complaints when formulating Plaintiffs RFC. Plaintiff does not identify any functional 

limitation arising from a diagnosis of somatization disorder that differs from the functional 

limitations arising from her severe PTSD impairment. 

The ALJ did not err by failing to develop the record further, and that determination 

should be found supported by substantial evidence. 

RECOMMENDATION 

For the foregoing reasons, the Commissioner's final decision should be AFFIRMED and 

final judgment should be entered. 

Page 21 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 21 of 22
SCHEDULING ORDER 

This Findings and Recommendation will be referred to a district judge. Objections, if any, 

are due no later than fourteen (14) days after the date this recommendation is filed. If objections 

are filed, any response is due within fourteen (14) days after the date the objections are filed. 

See, FED.R.CIV.P. 72, 6. Paiiies are advised that the failure to file objections within the 

specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 95F.2d 

1153 (9TH Cir. 1991 ). 

DATEDthis /h-liyofMay,2016. 

onorable Paul Papak 

United States Magistrate Judge 

Page 22 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00800-PK Document 15 Filed 05/16/16 Page 22 of 22