IN THE UNITED ST A TES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

JUANITAL. BREDING, ) 

) 

Plaintiff, ) 

) 

v. ) 

) 

CAROLYN W. COLVIN, Acting Commissioner of) 

Social Security, ) 

) 

Defendant. ) 

JONES, District Judge, 

6: 15-cv-00716-JO 

OPINION AND ORDER 

Plaintiff Juanita Breding appeals the Commissioner's decision denying her application for 

supplemental security income payments under Title XVI of the Social Security Act. The court has 

jurisdiction under 42 U.S.C. § 405(g). I AFFIRNf the Commissioner's decision. 

PRIOR PROCEEDINGS 

Breding alleged disability beginningFebruaiy 25, 2011, due to a1ndety with agoraphobia and 

panic, depression, fibromyalgia, degenerative disc disease in the thoracic region of the spine, 

aiihritis, and initable bowel syndrome. Admin. R. 19. The Administrative Law Judge ("ALJ") 

applied the sequential disability determination process described in 20 C.F.R. § 416.920. Admin. 

R. 21-28. She dete1mined that during the relevant time, fibromyalgia, mild thoracic degenerative 

disc disease, a mood disorder, and anxiety with agoraphobia and panic limited Breding's ability to 

do basic work. Admin. R. 21. The ALJ determined that despite these impairments, Breding retained 

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the residual functional capacity to perfmm a range of light work involving standing or walking up 

to four hours in a workday, but that she required the ability to sit or stand at will. The Af,J found 

she had limited ability to climb, reach in all directions, perfo1m gross and fine manipulations, and 

engage in postural activities such as stooping, bending, kneeling and so foiih. The ALJ further found 

her limited to simple, routine, repetitive tasks in goal oriented work, as opposed to assembly or pace 

work. Admin. R. 24. 

The vocational expert ("VE") testified that a person with Breding's RFC could perform the 

work-related activities required in occupations such as ticket seller or parking lot attendant, which 

together represent over one hundred thousand jobs in the national economy. Admin. R. 27. The ALJ 

concluded that Breding was not disabled within the meaning of the Social Security Act. Admin. R. 

28. 

STANDARD OF REVIEW 

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

standards and the findings of fact are supp01ied by substantial evidence in the record as a whole. 

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9'h Cir. 2008). Substantial evidence is such relevant 

evidence that "a reasonable mind might accept as adequate to support a conclusion." Webb v. 

Barnhart, 433 F.3d 683, 686 (9'h Cir. 2005); See also Smolen v. Chafer, 80 F.3d 1273, 1279 (9'h Cir. 

1996) ("Substantial evidence means more than a scintilla, but less than a preponderance.") (quoting 

Richardson v. Perales, 402 U.S. 389, 401 (1971)). Under this standard, the Commissioner's factual 

findings must be upheld if suppmied by inferences reasonably drawn from the record even if 

evidence exists to support another rational interpretation. Batson v. Comm 'r of Soc. Sec. Admin., 

359 F.3d 1190, 1193 (9'h Cir. 2004); Andrews v. Sha/ala, 53 F.3d 1035, 1039-40 (9'h Cir. 1995). 

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DISCUSSION 

I. Claims of Error 

The claimant bears the burden of showing that the ALJ en-ed and that any en-or was harmful. 

1'11cLeod v. Astrue, 640 F.3d 881, 886-87 (9'h Cir. 2011). Breding alleges the ALJ improperly 

discounted her subjective statements, three medical opinions, and her husband's lay witness 

statements. Breding contends these errors led the ALJ to assess her RFC in a manner that did not 

accurately reflect all of her functional limitations and to el1'oneously conclude that she is not 

disabled. 

II. Credibility Determination 

In her written application, Breding said she could not work because pain restricted her 

mobility and her ability to lift. Admin. R. 241. She said she could walk about 200 feet before 

needing to stop for five to ten minutes. She said she could pay attention for no longer than five 

minutes and could not finish tasks or follow instructions well. Admin. R. 246. In her testimony at 

the administrative hearing, Breding said that "fibro fog" made it difficult for her to stay focused on 

a task, maintain her train of thought, make basic change in a transaction, and remain dependable to 

show up to work on a daily basis. Admin R. 40, 48, 241. She said she had radiating pain and 

numbness from her shoulder to her fingers, and atihritic pain in her ankles, hands, and knees. As 

a result she could only lift ten pounds. Admin. R. 50-51. Breding said she had limited range of 

motion and could not sustain repetitive movement. Admin. R. 55. She also said that meeting 

deadlines made her anxious. Admin. R. 55. 

The ALJ believed Breding's impairments could cause some degree of the symptoms she 

alleged, as reflected in the significant limitations in Breding's RFC for lifting, sitting, standing, 

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reaching, manipulation, postural activities, and simple, repetitive tasks. Admin. R. 24-25. The ALJ 

discounted Breding's statements about the limiting effects of her symptoms to the extent Breding 

claimed she could not engage in work activities within the limitations in her RFC assessment. 

AdminR. 25. 

An adverse credibility determination must include specific findings supported by substantial 

evidence and a clear and convincing explanation. Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 

1155, 1160 (9'h Cir. 2008); Smolen v. Chater, 80 F.3d at 1281-82. The findings must be sufficiently 

specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the 

claimant's testimony. Tommasetti v. Astrue, 533 F.3d at 1039. In assessing credibility, an ALJ must 

consider all the evidence in the case record, including the objective medical evidence, the claimant's 

treatment history, medical opinions, daily activities, work history, the observations of third pmiies 

with knowledge of the claimant's functional limitations, and any other evidence that bears on the 

consistency and veracity of the claimant's statements. Tommasetti, 533 F.3d at 1039; Smolen, 80 

F.3d at 1284. 

The ALJ' s written decision shows that she considered all the evidence pe1iaining to the 

proper factors for assessing Breding's credibility. The ALJ correctly noted that there were very 

limited objective findings in the medical records regarding Breding's complaints. Admin. R. 25. 

For example, just before the alleged onset of her disability, Breding saw her primmy care doctor, 

Jeffrey Goldenberg, M.D., for abdominal pain. Dr. Goldenberg found no abnormalities on physical 

examination and ultrasound and diagnostic imaging were normal. Admin. R. 342. In June 2011 

James McHan, M.D., performed a consultative evaluation and obtained generally benign findings, 

except two points of tenderness, a muscle spasm over the trapezius, and decreased range of motion 

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in the neck. Breding had normal coordination, station, and gait, full motor strength, bulk, and tone 

in all muscle groups, and intact fine and gross motor skills. Admin. R. 277-279. Diagnostic imaging 

showed age appropriate minimal degenerative changes in the thoracic spine and nonnal hips. 

Admin. R. 280-281. 

In July 2011 Pamela Roman, Ph.D., perfo1med a psychodiagnostic assessment with formal 

testing. Dr. Roman did not observe any abnormal behavior and said Breding had adequate insight, 

judgment and impulse control. She was cooperative and soft spoken. On testing, Breding scored 

in the low average range of intelligence and was able to perform basic calculation functions. On 

Beck inventories, Breding indicated moderate mudety and minimal depression. Admin. R. 288. 

Breding saw Dr. Goldenberg on a few other occasions, but he did not record any additional 

objective findings in his progress notes. The ALJ could reasonably draw an adverse inference as to 

Breding's asse1tions of debilitating functional limitations from the absence of clinical or objective 

findings. It would be reasonable to expect that the debilitating limitations Breding claimed would 

be reflected in some way in the medical evidence. See },;Jorgan v. Comm 'r of Soc. Sec. Admin., 169 

F.3d 595, 600 (9'h Cir. 1999) (conflicts between the claimant's allegations a11d the objective medical 

evidence may undermine the claimant's credibility). 

The ALJ also considered Breding's treatment hist01y during the alleged period of disability. 

Admin. R. 25. The ALJ conectly observed that there were long periods during which Breding did 

not seek treatment for her allegedly disabling conditions. For example, in the months leading up to 

the alleged onset of disability, Breding saw Dr. Goldenberg for sleep difficulty, abdominal pain, a 

respiratory infection, and diet concerns related to her lipid levels, but not for any of her allegedly 

disabling conditions. Admin. R. 340, 342, 345, 348. Dr. Goldenberg noted that Breding had 

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struggled with fibromyalgia in the past, but that she was doing well ctmently and was not limited 

by myofascial pain. Breding attributed her sleep difficulty patily to anxiety and paiily to her 

husband's snoring, but appeared to respond well to medication withKlonopin. Admin. R. 345, 348. 

Dr. Goldenberg then saw Breding in June 2011 for a routine examination, where she had no 

complaints except cold hands and Dr. Goldenberg noted no abnormal findings. Admin. R. 302. She 

saw Dr. Goldenberg in December 2011 when she had no new major concerns but wanted a 

medication change because she felt sedated in the mornings on her previous medication. Admin. R. 

299-300. In April 2012, Breding told Dr. Goldenberg that she had experienced an exacerbation of 

fibromyalgia symptoms. She said she usually could deal with her symptoms with meditation and 

relaxation and did not want treatment with medications. Admin. R. 296-297. Similarly, Breding 

declined treatment for anxiety and agoraphobia in December 2012. She told Dr. Goldenberg she 

prefened to limit her social activities with strangers and groups, but was comf01iable with her 

symptoms and did not want treatment. Admin. R. 401, 403. The ALJ properly infened from 

Breding' s long periods without seeking treatment and from her refusal of treatment for her allegedly 

disabling symptoms that these symptoms were not as limiting as she alleged. Admin. R. 25. Orn 

v. Astrue, 495 F.3d 625, 638 (9'h Cir. 2007); Flaten v. Sec'y of Health & Human Serv., 44 F.3d 1453, 

1464 (9'h Cir. 1995). 

In Januaiy 2013 Breding saw Walter Hinz, M.D ., for a rheumatology consultation. He found 

no evidence of underlying inflammatmy process or connective tissue disease. He recommended 

improvement in her sleep, exercise and mood as the best approach to treatment of her symptoms. 

Admin. R. 389, 393. The ALJ conectly noted that Breding declined to follow through with exercise 

and treatment for her mood, although she did take medications to help her with sleep. Admin. R. 

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25. A claimant's failure to follow treatment recommendations supports an adverse inference as to 

the severity of the symptoms that such treatment recommendations are designed to alleviate. 

Tonapetyan v. Halter, 242 F.3d 1144, 1147-48 (9'h Cir. 2001). When a claimant alleges debilitating 

pain, the absence of treatment for long periods, and treatment with conservative means is powerful 

evidence regarding the severity of the pain she experienced. Burch v. Barnhart, 400 F.3d 676, 681 

(9'h Cir. 2005). 

The ALJ considered the medical opinions of Drs. McHan and Roman and the agency 

reviewing physicians, as well as the lay witness statement ofBreding's husband, all discussed more 

fully below. Admin. R. 25-26. The ALJ's credibility detennination is consistent with her 

interpretation of that evidence. 

The ALJ noted that Breding made statements to her physicians that were inconsistent with 

her claims of debilitating symptoms. For example, just before filing her claim for disabling 

fibromyalgia, she told Dr. Goldenberg that her "myofacial pain is not limiting her right now." 

Admin. R. 345. Contrary to her claim of debilitating agoraphobia, Breding told Dr. Roman that she 

got along well with supervisors, coworkers and the public. Admin. R. 285. Although she alleged 

chronic debilitating "fibro-fog," she told Dr. Goldenberg in December 2011 that her moming 

grogginess was a side effect of medication she had discontinued; in June 2013 she told him that she 

had been groggy in the moming for one month and that it cleared up after one hour. Admin. R. 299-

300, 394. These statements conflict with her claim of persistent debilitating fibro-fog. 

As the foregoing demonstrates, the ALJ considered the proper factors for assessing Breding' s 

credibility and reached conclusions reasonably drawn from substantial evidence in the record. The 

ALJ' s explanation is clear and convincing and her findings are sufficiently specific to satisfy me that 

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she did not arbitrarily discredit Breding's statements. Accordingly, Breding has failed to establish 

a basis to overtum the ALJ's credibility determination. Carmickle v. Comm 'r, Soc. Sec. Adm in., 533 

F.3d at 1160; Tommasetti v. Astrue, 533 F.3d at 1039. 

III. Medical Opinions 

Breding contends the ALJ failed to properly evaluate the medical opinions of primmy care 

provider Dr. Goldenberg, consultative examiner Dr. Mc Han, and agency reviewing medical experts 

Mmy Ann Westfall, M.D., and Megan Nicoloff, Psy.D. 

A. Dr. Goldenberg 

Dr. Goldenberg provided Breding with primmy care from 2007 through the relevant time for 

her claim. During 2007, Breding complained of myofascial pain triggered by a work injmy. On 

physical examination, Breding had discomfort with palpation in the lumbar region of the spine and 

pain in the cervical region that "limits her range of motion a bit." Admin. R. 375. She did not have 

truly positive signs for fibromyalgia or findings that would support a diagnosis of fibrositis 

syndrome. Dr. Goldenberg found normal pulses, reflexes, muscle strength, and muscle tone. 

Admin. R. 375-76. In his treatment notes from May2007, Dr. Goldenberg said "the patient is really 

not able to work with the degree of pain that she is having right now" and he wrote a letter to her 

employer to that effect. Admin. R. 376. In June 2007, Dr. Goldenberg indicated that Breding was 

making progress but still had "significant limitations due to pain." Admin. R. 3 7 6. In September 

2007, Dr. Goldenberg said that Breding continued to have myofascial pain, but "I think that she is 

functioning quite well right now." Admin. R. 373. In June 2010, Dr. Goldenberg stated that Plaintiff 

was "doing generally well and that her myofascial pain is not limiting her right now." Admin R. 

345. 

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Although Breding alleges her disability did not begin until Febrnaiy 2011, she now claims 

the ALJ ened by failing to discuss Dr. Goldenberg's treatment notes from May and June 2007, in 

which he indicated she was unable to work at that time. The ALJ did not discredit Dr. Goldenberg's 

assessment from May and June 2007 and, consequently, had no obligation to give reasons for doing 

so. Dr. Goldenberg identified tempora1y limitations from a work injmythat improved by September 

2007, over three years before Breding alleges her disability began. The ALJ properly discussed Dr. 

Goldenberg' s findings that were contemporaneous with Breding' s claim of disability. I find no enor. 

B. Dr. McHan 

As described previously, Dr. McHan performed a consultative medical evaluation in June 

2011. Admin. R. 277-279. He made ve1y limited objective findings, including two points of 

tenderness to palpation, a muscle spasm over the trapezius, and decreased range of motion in the 

neck. He found that Breding had normal coordination, station, and gait, full motor strength, bulk, 

and tone in all muscle groups, and intact fine and gross motor skills. Admin. R. 277-279. 

Diagnostic imaging showed age appropriate minimal degenerative changes in the thoracic spine and 

normal hips. Admin. R. 280-281. He made no clinical findings based on functional capacity testing. 

Despite the limited findings, Dr. McHan opined that Breding could stand or walk for less 

than 2 hours a day, sit for up to four hours a day, engage in postural activities such as climbing, 

balancing, stooping and so fmih on an occasional basis for less than two hours, and occasionally 

perfo1m manipulative activities. Admin. R. 279. The ALJ gave Dr. McHan's assessment of 

Breding's functional limitations little weight in her decision. Admin. R. 25. 

Breding contends the ALJ gave insufficient weight to Dr. McHan's opinion regarding her 

functional limitations. An ALJ can discount a physician's opinion in favor of the opinion of another 

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physician, if the ALJ makes findings setting fotih specific, legitimate reasons for doing so that are 

based on substantial evidence in the record. lvfolina v. Astrue, 674 F.3d 1104, 1111 (91

h Cir. 2012); 

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If the opinion is not contradicted by 

another physician, the ALJ may reject it by providing a clear and convincing explanation based on 

findings supported by substantial evidence. Thomas v. Barnhart, 278 F.3d 947, 956-57 (91

h Cir. 

2002). Here the ALJ provided an adequate explanation under either standard for the weight she 

attributed to Dr. McHan's opinion. 

The ALJ found Dr. Mc Han's functional assessment unsupported by his objective and clinical 

findings. For example, Dr. McHan's opinion that Breding could only engage in manipulation 

occasionally was contradicted by his clinical examination findings that she had no impaitment of her 

fine and gross motor skills. An ALJ may properly reject the medical opinion of a doctor whose 

treatment notes and clinical observations are inconsistent with the doctor's assessment of the 

claimant's abilities. Bayliss v. Barnhart, 427 F.3d at 1216. Dr. McHan's opinion regarding 

Breding' s limitations in standing, walking, sitting, and engaging in postural activities has no supp01i 

in his objective examination findings or in the diagnostic imaging. Admin. R. 277-279, 280-281. 

An ALJ may properly reject a physician's opinion that is brief, conclusory, and inadequately 

suppo1ied by clinical or objective findings. 1Vfeanal v. Apfel, 172 F.3d 1111, 1117 (9'h Cir. 1999). 

The ALJ' s conclusion that Dr. Mc Han relied primarily on Breding' s subjective complaints 

in forming his opinion of her functional limitations can reasonably be infened from the absence of 

clinical or objective support for the opinion. An ALJ is entitled to reject an examining physician's 

opinion that is premised primarily on subjective complaints that the ALJ properly found umeliable. 

Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9'h Cir. 2001). 

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The ALJ's reasoning in dete1mining the weight to give Dr. McHan's opinion is clear and 

convincing and based on rational inferences drawn from substantial evidence in the record. 

Accordingly, the ALJ's dete1mination to give diminished weight to Dr. McHan's opinion regarding 

functional limitations must be upheld, even if the record could reasonably be interpreted differently. 

Batson, 359 F.3d at 1193. 

C. Reviewing physicians 

The Commissioner relies on medical consultants to make findings of fact about the nature 

of a claimant's impairments and the severity of the functional limitations they impose. 20 C.F.R. 

§ 4 l 6.927(f); SSR 96-6p, 1996 WL 374180. These consultants do nottreat or examine the claimant, 

but form their opinions by reviewing the medical evidence in light of their expertise in the disability 

programs under the Social Security Act. The ALJ relied on the findings of Dr. Westfall and Dr. 

Nicoloffwho reviewed the case file and made findings regarding Breding's RFC. 

Dr. Westfall reviewed the case record in July 2012 and opined that Breding retained the 

functional capacity to perform work at the light level of exertion, with limitations on postural 

activities. Admin. R. 101-106. The ALJ considered Dr. Westfall's opinion and did not reject it. 

Accordingly, the ALJ had no obligation to justify discrediting the opinion. 

Dr. Nicoloff reviewed the case record in December 2012 and reached conclusions similar to 

Dr. Westfall, but found Breding retained the ability to perform work at the medium level of exertion. 

Admin. R. 113. The ALJ rejected portions of Dr. Nicolofrs opinion because the record as a whole 

suggested Breding could not exceed light exertion with limited standing, walking, sitting, reaching 

and the other limitations in her RFC. Admin. R. 24, 26. Unsurprisingly, Breding does not challenge 

the ALJ' s conclusion that she had greater limitation than those in Dr. Nicoloff s opinion. 

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Dr. Nicoloff also opined that Breding's mood disorder would preclude her from performing 

complex, detailed tasks consistently, but that Breding would "have no difficulty perf01ming routine 

repetitive tasks of 1 to 2 steps." Admin. R. 119. Breding argues that the ALJ erred by failing to 

limit her RFC assessment to 1 to 2 step tasks. This argument cannot be sustained because Dr. 

Nicoloff did not express a functional limitation to 1 to 2 step tasks, i.e. Dr. Nicoloff said she was 

fully capable of such tasks but did not identify tasks that Breding could not do. Accordingly, the 

ALJ properly excluded this limitation from her RFC assessment. 

In summary, I find no error in the ALJ's evaluation of the medical opinions. 

IV. Lay Witness Statement 

Bred.ing' s husband Brett Breding submitted a third party function report in support of her 

disability claim. Admin. R. 232-239. The ALJ correctly found that his statements regarding 

Breding' s functional limitations were consistent with her own subjective asse1iions. The ALJ gave 

Mr. Breding' s statements about her functional limitations little weight for the same reasons she 

discounted Breding's similar assertions. Admin. R. 25. 

Lay witness statements as to a claimant's symptoms are competent evidence that an ALJ 

must consider. Nguyen v. Chafer, 100 F.3d 1462, 1467 (9'h Cir. 1996). An ALJ may discount the 

statements of a lay witness for reasons germane to the witness. Valentine v. Comm 'r of Soc. Sec. 

Admin., 574 F.3d 685, 694 (9'h Cir. 2009). An ALJ need not clearly link the reasons to her 

dete1mination that the lay witness testimony should be discounted, as long as she notes germane 

reasons somewhere in the decision and they are supported by substantial evidence. Lewis v. Apfel, 

236 F.3d 503, 512 (9'h Cir. 2001). Fmiher, when the statements of a lay witness are similar to the 

claimant's subjective complaints, then an ALJ's clear and convincing reasons for rejecting the 

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claimant's testimony are also germane to the lay witness. Nfolina v. Astrue, 674 F.3d at 1114; 

Valentine, 574 F.3d at 694. The ALJ properly discounted the credibility of Breding's subjective 

assertions and her reasons for doing so are also germane to the lay witness statement ofBreding's 

husband. I find no error in the ALJ's evaluation of the lay witness statement. 

V. Remaining Contentions 

Breding's remaining contentions, i.e. that the ALJ failed to accurately assess her RFC and, 

therefore, e11'oneously concluded she was not disabled, depend on the claims of error previously 

rejected. Because Breding failed to carry her burden of establishing harmful error, the ALJ's 

decision must be affirmed. 

CONCLUSION 

For the foregoing reasons, the Commissioner's final decision is AFFIRL\1ED. 

DATED this .Qg-1- day of August, 2016. 

-13- OPINION AND ORDER 

§,-1 nes, Senior Judge 

-States District Court 

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