PAGE 1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DEACON L. THOMAS, 

 Plaintiff, 

 v. 

CAROLYN W. COLVIN 

Commissioner of Social Security, 

 Defendant. 

Case No. 1:14-cv-01627-SI 

OPINION AND ORDER

Phillip W. Studenberg, Attorney at Law, P.C., 230 Main St., Klamath Falls, OR 97601. Of 

Attorneys for Plaintiff. 

Billy J. Williams, Acting United States Attorney, and Ronald K. Silver, Assistant United States 

Attorney, United States Attorney’s Office, District of Oregon, 1000 S.W. Third Avenue, Suite 

600, Portland, OR 97201-2902; Alexis L. Toma, Special Assistant United States Attorney, 

Office of the General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 

M/S 221A, Seattle, WA 98104-7075. Of Attorneys for Defendant. 

Michael H. Simon, District Judge.

Deacon L. Thomas seeks judicial review of the final decision of the Commissioner of the 

Social Security Administration (“Commissioner”) denying her application for supplemental 

security income under Title XVI of the Social Security Act. For the following reasons, the 

Commissioner’s decision is AFFIRMED. 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 1 of 19
PAGE 2 – OPINION AND ORDER 

STANDARD OF REVIEW 

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

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

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means 

“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec. Admin.,

554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 

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

support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039). 

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

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

Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s 

interpretation is a rational reading of the record, and this Court may not substitute its judgment 

for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 

1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may 

not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 

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

Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the 

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

F.3d at 1226. 

BACKGROUND 

A. Procedural History 

Counsel for Plaintiff, Phil Studenberg, originally filed an opening brief that largely 

related to a different claimant for social security benefits. Plaintiff’s brief began by asserting 

three errors committed by the ALJ: (1) improperly rejecting the opinions and ultimate 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 2 of 19
PAGE 3 – OPINION AND ORDER 

conclusions of Plaintiff’s treating and examining physicians; (2) improperly giving great weight 

to the testimony of Dr. Darius Ghazi, a “medical witness”; and (3) improperly ignoring the 

diagnosis of fibromyalgia and Chronic Fatigue Syndrome. After the first sentence in the “Facts 

and Arguments” section, however, the brief filed by Mr. Studenberg purportedly on behalf of 

Plaintiff began discussing medical impairments that were not alleged by Plaintiff. The brief 

mentioned doctors and treatment not found in Plaintiff’s record. The brief also cited to transcript 

pages that did not exist in Plaintiff’s record. Opposing counsel contacted Mr. Studenberg, who 

explained that he had filed the “correct brief” but had accidentally included irrelevant text. The 

two attorneys agreed to strike the portion that did not pertain to Plaintiff. After the agreed-upon 

irrelevant language was stricken, all that remained in Plaintiff’s original opening brief was the 

assertion of the three errors committed by the ALJ and one additional sentence. As such, the 

original brief did not offer any argument or evidence in support of Plaintiff’s allegations. 

Counsel for the Commissioner filed a response brief pointing out that the result of 

striking all but one sentence left nothing to support the assertions made by Plaintiff. 

Mr. Studenberg did not reply to the Commissioner’s brief or seek leave from the Court to amend 

Plaintiff’s opening brief. In an Order dated July 1, 2015, the Court provided Plaintiff the 

opportunity to file a supplemental opening brief supporting her claims. The Court set a deadline 

of September 4, 2015 for the supplemental brief. The Court also expressed “serious concerns” 

regarding Mr. Studenberg’s representation of Plaintiff and ordered that the Court’s opinion be 

sent to the Professional Liability Fund. On July 15, 2015, Mr. Studenberg filed a supplemental 

opening brief on behalf of Plaintiff. In response to Plaintiff’s supplemental opening brief, the 

Commissioner notes that Plaintiff’s brief, although containing facts relating to Plaintiff, offers 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 3 of 19
PAGE 4 – OPINION AND ORDER 

almost no specific argument or evidence supporting her claims. Mr. Studenberg did not file a 

reply brief. 

Plaintiff’s supplemental opening brief continues to raise serious concerns as to the 

adequacy of Mr. Studenberg’s representation of Plaintiff. Although Plaintiff’s supplemental brief 

provides little supporting argument and evidence, the Court finds that issues have been raised 

sufficiently for the Court to consider Plaintiff’s claims on the merits. 

B. Plaintiff’s Application 

Plaintiff filed an application for supplemental social security income, alleging disability 

beginning September 21, 2010. She was born on July 28, 1976, and was 36 years old at the time 

of her disability hearing. Plaintiff alleges disability due to degenerative disk disease and disorder, 

back injury, patellar femoral syndrome, knee injury, learning disability, depression, thyroid 

problems, and acid reflux. The Commissioner denied her application initially and upon 

reconsideration; thereafter, she requested a hearing before an Administrative Law Judge 

(“ALJ”). The ALJ found Plaintiff not disabled. The Appeals Council declined Plaintiff’s request 

for review, making the ALJ’s decision the final decision of the Commissioner. Plaintiff now 

seeks judicial review of that decision. 

C. The Sequential Analysis 

A claimant is disabled if he or she is unable to “engage in any substantial gainful activity 

by reason of any medically determinable physical or mental impairment which . . . has lasted or 

can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. 

§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for 

determining whether an applicant is disabled within the meaning of the Social Security Act.” 

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. 

§ 404.1520 (DIB); 20 C.F.R. § 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 4 of 19
PAGE 5 – OPINION AND ORDER 

step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4). The five-step 

sequential process asks the following series of questions: 

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

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

mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. 

§§ 404.1510; 416.910. If the claimant is performing such work, she is not 

disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i); 

416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the 

analysis proceeds to step two. 

2. Is the claimant’s impairment “severe” under the Commissioner’s regulations? 20 

C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless expected to result in death, 

an impairment is “severe” if it significantly limits the claimant’s physical or 

mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a); 416.921(a). 

This impairment must have lasted or must be expected to last for a continuous 

period of at least 12 months. 20 C.F.R. §§ 404.1509; 416.909. If the claimant does 

not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 

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

to step three. 

3. Does the claimant’s severe impairment “meet or equal” one or more of the 

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

claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the 

impairment does not meet or equal one or more of the listed impairments, the 

analysis proceeds beyond step three. At that point, the ALJ must evaluate medical 

and other relevant evidence to assess and determine the claimant’s “residual 

functional capacity” (“RFC”). This is an assessment of work-related activities that 

the claimant may still perform on a regular and continuing basis, despite any 

limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e); 

404.1545(b)-(c); 416.920(e); 416.945(b)-(c). After the ALJ determines the 

claimant’s RFC, the analysis proceeds to step four. 

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

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

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

past relevant work, the analysis proceeds to step five. 

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

claimant able to make an adjustment to other work that exists in significant 

numbers in the national economy? If so, then the claimant is not disabled. 

§§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c); 416.960(c). If the claimant 

cannot perform such work, he or she is disabled. Id.

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 5 of 19
PAGE 6 – OPINION AND ORDER 

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

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

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 146 n.5. The 

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

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

numbers in the national economy, “taking into consideration the claimant’s residual functional 

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

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

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

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

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

Tackett, 180 F.3d at 1099. 

D. The ALJ’s Decision 

The ALJ applied the sequential analysis in her April 23, 2013 decision. At step one, the 

ALJ found Plaintiff has not engaged in substantial gainful activity since May 16, 2011, several 

months after the alleged disability onset date. At step two, the ALJ found that Plaintiff had the 

following severe impairments: degenerative disk disease/back injury, left knee injury, 

fibromyalgia, obesity, and learning disorder. In determining these impairments were severe, the 

ALJ relied on the medical records from several treating and examining physicians. At step three, 

the ALJ determined that Plaintiff did not have an impairment or combination of impairments that 

met or medically equaled one of the listed impairments. 

The ALJ next assessed Plaintiff’s RFC. The ALJ found that Plaintiff has the RFC to 

perform light work. In determining the RFC, the ALJ considered Plaintiff’s medical records and 

activities of daily living. The ALJ did not find Plaintiff’s subjective complaints to be reasonably 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 6 of 19
PAGE 7 – OPINION AND ORDER 

consistent with the medical evidence. The ALJ also found that Plaintiff could perform a full 

range of daily activities, which was inconsistent with the nature, severity, and subjective 

complaints of the claimant. 

At step four, the ALJ relied upon testimony from a vocational expert. The ALJ 

determined that Plaintiff was able to perform her past relevant work as a cashier.1 Thus, the ALJ 

found that Plaintiff was not, as defined by the Social Security Act, from the alleged onset date 

through the date of the ALJ’s decision, April 23, 2013. 

DISCUSSION 

Plaintiff seeks review of the determination by the Commissioner that she was not 

disabled. Plaintiff’s supplemental opening brief lists the following errors allegedly committed by 

the ALJ: (A) improperly weighing the medical evidence; (B) improperly rejecting Plaintiff’s 

symptom testimony; and (C) improperly evaluating lay witness statements. 

A. Medical Evidence 

Plaintiff argues that the ALJ made three errors in evaluating the medical evidence. 

Plaintiff asserts the ALJ erred by: (1) improperly giving great weight to the testimony of 

Dr. Darius Ghazi, a “non-examining medical witness”; (2) improperly ignoring the evidence 

regarding the severity and of Plaintiff’s impairments; and (3) failing to address the side effects of 

Plaintiff’s prescription medications; 

Social Security regulations distinguish among the opinions of three types of physicians: 

(1) treating physicians, who treat the claimant; (2) examining physicians, who examine but do 

not treat the claimant; and (3) non-examining physicians, who neither examine nor treat the 

claimant, but review the claimant’s file. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); see

 1

 Because the ALJ found Plaintiff could perform her past relevant work, the ALJ did not 

perform a step-five analysis. 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 7 of 19
PAGE 8 – OPINION AND ORDER 

20 C.F.R. § 404.1527(d). The Ninth Circuit has explained how the Commissioner is to consider 

medical evidence. Generally, a treating physician’s opinion carries more weight than an 

examining physician’s, and an examining physician’s opinion carries more weight than a nonexamining physician’s. Holohan v. Massinari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. 

§ 404.1527(d). In addition, the regulations give more weight to opinions that are explained than 

to those that are not and to the opinions of specialists concerning matters relating to their 

specialty over that of non-specialists. Holohan, 246 F.3d at 1202; 20 C.F.R. §§ 404.1527(c)(3)-

(c)(5), 416.927(c)(3)-(c)(5). Finally, the testimony of a non-examining medical advisor who 

testifies at the hearing and is subject to cross examination is entitled to greater weight than the 

opinions of other non-treating, non-examining physicians. Andrews, 53 F.3d at 1042; Lester, 81 

F.3d at 831. 

If a treating physician’s medical opinion is not inconsistent with other substantial 

evidence in the record, and is supported by medically acceptable clinical findings, it is generally 

given controlling weight. Holohan, 246 F.3d at 1202; 20 C.F.R. § 404.1527(d)(2). An ALJ need 

not, however, accept a physician’s opinion that is brief, conclusory, or inadequately supported by 

clinical findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Crane v. Shalala, 76 

F.3d 251, 253 (9th Cir. 1996) (ALJ properly rejected check-off reports that did not contain any 

explanation of bases for conclusions). If an ALJ chooses to reject the uncontradicted opinion of a 

treating physician, he or she must provide “clear and convincing” reasons for doing so. Baxter v. 

Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). 

The ALJ is responsible for resolving any conflicts in the medical record, including 

conflicts among medical opinions. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 

(9th Cir. 2008). If the opinion of a treating physician is contradicted by another medical source , 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 8 of 19
PAGE 9 – OPINION AND ORDER 

the ALJ must provide “specific, legitimate reasons” supported by substantial evidence in the 

record for discrediting the opinion. Lester, 81 F.3d at 830-31; Andrews, 53 F.3d at 1043. 

Specific, legitimate reasons for rejecting a medical source opinion include reliance on a 

claimant’s discredited subjective complaints and inconsistency with medical records. Tommasetti 

v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). The contrary opinion of a non-examining 

physician cannot by itself justify rejecting the opinion of a treating or examining physician. 

Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 

1456 (9th Cir. 1984). 

1. Dr. Ghazi 

Plaintiff asserts that the ALJ erred by crediting the opinion of Dr. Ghazi, a nonexamining physician who testified at the hearing, with significant weight. At the hearing, the 

ALJ questioned Dr. Ghazi about Plaintiff’s statements that her knee surgeries were unsuccessful 

and that her patella still slips occasionally. AR 45, 59. Dr. Ghazi stated that the surgery Plaintiff 

had is generally very effective and opined that Plaintiff may feel as if the patella were slipping 

even though it is actually well aligned and staying in place. AR 45. Dr. Ghazi explained that he 

based that opinion on the evaluation of the records of Plaintiff’s surgeon, Dr. Edward VanTassel. 

Id. Dr. VanTassel’s post-surgery report supported Dr. Ghazi’s opinion by noting that Plaintiff 

had “excellent patellar stability . . . .” AR 271-72. Dr. VanTassel also reported “good alignment” 

with “[n]o evidence of any lateral subluxation” one month after Plaintiff’s surgery. AR 292. 

The only specific argument Plaintiff provides to support accrediting Dr. Ghazi’s opinion 

with less weight is that Dr. Ghazi’s opinion about Plaintiff’s knee pain was subjective rather than 

objective. An ALJ, however, “must give sufficient weight to the subjective aspects of a doctor’s 

opinion.” Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (citing Embrey v. Bowen, 849 

F.2d 418, 422 (9th Cir. 1988)). Plaintiff does not cite to any medical evidence in the record 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 9 of 19
PAGE 10 – OPINION AND ORDER 

contradicting Dr. Ghazi’s testimony and upon reviewing the record, the Court did not find any. 

Further, because Dr. Ghazi testified at the hearing and was subject to cross examination, his 

opinion is entitled to greater weight than Plaintiff’s non-examining, non-testifying physicians. 

Andrews, 53 F.3d at 1042; Lester, 81 F.3d at 831. Considering the record as a whole, the ALJ did 

not err in crediting Dr. Ghazi’s opinion with significant weight. 

2. Plaintiff’s Treating and Examining Physicians 

Plaintiff also contends that the ALJ improperly rejected the opinions and conclusions of 

Plaintiff’s treating and examining physicians. Plaintiff does not identify any specific physician 

whose opinion was allegedly improperly rejected. Plaintiff summarily states that the ALJ ignored 

“multiple” medical records relating to Plaintiff’s “Patellar Femeral Syndrome, knee surgeries and 

injections, a learning disability, bilateral Carpal Tunnel Syndrome, degenerative disc disease, 

thyroid nodules and hypothyroidism, depression, and a learning disability [sic].” Plaintiff also 

states that the ALJ erred by ignoring the diagnoses of fibromyalgia and chronic fatigue 

syndrome. Plaintiff offers no record citations to any purported opinions, records, or diagnoses 

that were allegedly improperly rejected. 

It is not a Court’s role to manufacture legal arguments on behalf of a Plaintiff or scour the 

record on her behalf for factual support. See, e.g., W. Radio Servs. Co. v. Qwest Corp., 678 

F.3d 970, 979 (9th Cir. 2012) (“We will not do an appellant’s work for it, either by 

manufacturing its legal arguments, or by combing the record on its behalf for factual support.”); 

Sekiya v. Gates, 508 F.3d 1198, 1200 (9th Cir. 2007) (striking the appellant’s opening brief in its 

entirety and dismissing the appeal because the brief merely provided the court “with a list of 

asserted facts without adequate citation to the record and without any argument or authority”). 

Plaintiff must provide in her brief specific legal argument and analyses. See Carmickle v. Astrue, 

533 F.3d 1156, 1161 n.2 (9th Cir. 2008) (refusing to address an issue where the appellant “failed 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 10 of 19
PAGE 11 – OPINION AND ORDER 

to argue this issue with any specificity in his briefing”). Nonetheless, the Court did review the 

record in an attempt to ascertain the contours of Plaintiff’s allegations of error. 

In making a determination of disability, an ALJ must develop the record and interpret the 

medical evidence. See Crane v. Shalala, 76 F.3d at 255. In doing so, an ALJ must consider the 

combined effect of all the claimant’s impairments without regard to whether any such 

impairment, if considered separately, would be of sufficient severity. 20 C.F.R. § 416.923. In 

interpreting the evidence and developing the record, however, an ALJ does not need to “discuss 

every piece of evidence.” Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984); see also 

Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“The court concluded that the ALJ 

was not required to discuss every piece of evidence and that the ALJ’s decision was supported by 

substantial evidence.”). Rather, an ALJ must explain why “significant probative evidence has 

been rejected.” Vincent, 739 F.2d at 735. 

Here, some of the evidence Plaintiff asserts that the ALJ ignored pertains to conditions 

the ALJ discussed and found to be severe impairments. First, with respect to Plaintiff’s knee 

problems, the ALJ discussed both of Plaintiff’s knee surgeries, as well as her x-ray results and 

ongoing pain symptoms and determined that Plaintiff’s knee injury was a severe impairment. AR 

17, 20, 21 (citing AR 268-291, 310, 335). The ALJ also concluded that Plaintiff’s degenerative 

disc disease was a severe impairment and referenced two separate medical exhibits to support 

that determination. Id. (citing AR 268-91, 312). The ALJ also discussed the medical records 

showing that these conditions did not result in significant functional limitations. Thus, the ALJ 

did not ignore these records and his conclusion that with these conditions Plaintiff could perform 

light work is supported by substantial evidence in the record. 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 11 of 19
PAGE 12 – OPINION AND ORDER 

Similarly, the ALJ also specifically addressed Plaintiff’s learning disability. Despite the 

fact that Plaintiff failed to provide any medical evidence of a learning disability, the ALJ noted 

that Plaintiff’s testimony indicated she had a “history of learning problems.” AR 17, 22, 84. As 

such, the ALJ determined that Plaintiff’s learning disorder was also a severe impairment at step 

two and incorporated associated limitations into Plaintiff’s RFC at step four. AR 17, 19 

(Plaintiff’s RFC states that Plaintiff is limited to-one-to-three-step tasks with no detailed work.). 

Plaintiff does not indicate how the ALJ ignored any significant probative evidence relating to his 

findings for these three severe impairments. Thus, the Court finds no error. 

The remaining records that Plaintiff asserts were ignored were neither significant nor 

probative. First, Plaintiff submitted voluminous records regarding a thyroid nodule that did not 

present any evidence of limitation. AR 252-68. Dr. Sean Traynor reported normal thyroid testing 

and no palpable nodules, but an ultrasound revealed a 1.3 cm nodule on the left side. AR 253-54. 

Plaintiff had no risk factors for thyroid cancer, but decided to biopsy the nodule. AR 260. Before 

the alleged disability date, Dr. Patrick R. Hungerford reported that Plaintiff was “very relieved” 

that her biopsy results were benign and that Plaintiff did not have any neck pain or difficulty 

swallowing. AR 256. Because there was no indication that Plaintiff’s thyroid nodule affected her 

ability to work, the ALJ’s failure to discuss this evidence was not error. 

Next, Plaintiff alleged impairments of carpal tunnel syndrome and depression without 

presenting evidence that either condition caused significant limitation or interfered with her 

ability to work. For carpal tunnel syndrome, the record indicates that Plaintiff reported hand 

numbness one time several months before the alleged disability date, underwent a nerve 

conduction test that was “possibly suggestive of carpal tunnel,” and did nothing further. 

AR 46, 329. For depression, the record indicates Plaintiff reported periodically feeling depressed 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 12 of 19
PAGE 13 – OPINION AND ORDER 

and took Cymbalta “off and on” to treat various symptoms. See AR 54, 56, 243, 300, 313, 368 

(Plaintiff reports taking Cymbalta for back pain, fibromyalgia, migraines and depression, but 

there is no evidence from her doctors discussing why Cymbalta was actually prescribed). Thus, 

the ALJ’s failure to discuss carpal tunnel syndrome and depression evidence was not error. 

Finally, Plaintiff contends that the ALJ ignored her diagnoses of fibromyalgia and 

chronic fatigue syndrome. Plaintiff includes a bare reference to “SSR 12-2p” after this assertion. 

Social Security Ruling 12-2p, Evaluation of Fibromyalgia,2

 provides guidance on how to 

determine whether the evidence establishes a medically determinable impairment of 

fibromyalgia. Here, the ALJ addressed Plaintiff’s fibromyalgia diagnosis and determined it was a 

severe impairment at step two. AR 17. In assessing Plaintiff’s RFC, the ALJ discussed Plaintiff’s 

activities and medical records as being inconsistent with her testimony regarding the nature and 

severity of her limitations. Regarding Plaintiff’s alleged chronic fatigue syndrome, although 

Plaintiff stated in her Disability Report “I have been told that I probably have chronic fatigue 

syndrome” there is no medical evidence to support that a diagnosis of chronic fatigue syndrome 

existed. AR 226. Thus, Plaintiff’s claim that the ALJ improperly ignored her diagnoses of 

fibromyalgia and chronic fatigue syndrome is not supported by substantial evidence in the 

record. 

3. Prescription Side Effects 

Plaintiff also argues that the ALJ did not address the side effects of her prescription 

medications. Although Plaintiff did not argue specifically how the ALJ may have erred in this 

 2

 This document is available at 2012 WL 3104869.

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 13 of 19
PAGE 14 – OPINION AND ORDER 

regard, the Court reviewed the record for evidence regarding side effects from Plaintiff’s 

prescriptions. 

An ALJ must consider all factors that have a significant impact on the Plaintiff’s ability 

to work, including the side effects of medication. Burger v. Astrue, 536 F. Supp. 2d 1182, 1188 

(C.D. Cal. 2008) (citing to Erickson v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993); Varney v. 

Sec’y of Health & Human Servs., 846 F.2d 581, 585 (9th Cir. 1988)). As stated above, however, 

the ALJ need not discuss all of the evidence presented in the decision. Howard, 341 F.3d 

at 1012. Instead, the ALJ must explain why any significant probative evidence was rejected.

Stark, 886 F. Supp. at 735. 

Here, there was no evidence in the record of side effects from Plaintiff’s various 

medications severe enough to interfere with Plaintiff’s ability to work. Plaintiff reported that 

Armour Thyroid caused her to experience hair growth, diarrhea, stomach pain, and dry skin. 

AR 210, 222. Plaintiff reported heavy sweating from taking Synthroid. AR 228. Plaintiff 

reported that Lyrica caused her to gain weight. AR 60. Plaintiff’s Function Report listed both 

sleepiness and drowsiness as side effects from Oxycodone, Flexeril, and Cymbalta. AR 188. 

Plaintiff’s medical records indicated she took these medications “as needed” and “off and on” to 

manage her chronic pain, periodic depression, and migraines. AR 300, 311, 313, 368, 372. At the 

hearing, Plaintiff stated that she would forgo taking any pain medication if she needed to drive. 

AR 54-55. Plaintiff’s Disability Reports, however, indicated no side effects from Oxycodone and 

no side effects from Cymbalta AR 210, 228. 

The medical evidence of side effects from Plaintiff’s medications was tantamount to 

passing mentions in Plaintiff’s medical reports. Plaintiff offers no specific argument, and the 

Court found no evidence, of any side effects severe enough to interfere with Plaintiff’s ability to 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 14 of 19
PAGE 15 – OPINION AND ORDER 

work. Thus, the ALJ did not err by failing to address the side effects of Plaintiff’s prescription 

medication. See Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001) (“There were passing 

mentions of the side effects of [Plaintiff’s] medication in some of the medical records, but there 

was no evidence of side effects severe enough to interfere with [Plaintiff’s] ability to work.”). 

B. Plaintiff’s Testimony 

Plaintiff argues that the ALJ improperly rejected her symptom testimony. There is a twostep 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 v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting 

Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). 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 v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). 

Second, “if the claimant meets this 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. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be 

“sufficiently specific to permit the reviewing court 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, 947 F.2d at 345-46). 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 15 of 19
PAGE 16 – OPINION AND ORDER 

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

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

parties 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 takes or has taken to alleviate pain or other symptoms; treatment, other 

than 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. 

Further, the Ninth Circuit has said that an ALJ also “may consider . . . ordinary 

techniques of credibility evaluation, such as the claimant’s 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’s credibility decision may 

be upheld overall even if not all of the ALJ’s reasons for rejecting the claimant’s testimony are 

upheld. See Batson, 359 F.3d at 1997. 

Here, Plaintiff asserts that the ALJ rejected her symptom testimony without giving clear 

and convincing reasons for doing so. Although the ALJ determined that Plaintiff’s medically 

determinable impairments could reasonably cause some of Plaintiff’s alleged symptoms, the ALJ 

also determined that Plaintiff’s reports with respect to the intensity, persistence, and limiting 

effects of her symptoms were not entirely creditable. AR 20. 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 16 of 19
PAGE 17 – OPINION AND ORDER 

The ALJ explained that Plaintiff’s complaints were not reasonably consistent with the 

medical evidence and with Plaintiff’s activities of daily living. First, the ALJ determined that the 

medical evidence indicates Plaintiff’s knee surgery showed good healing. See AR 20 (citing AR 

277) (Plaintiff reported feeling better with daily activities, including doing dishes, mopping, and 

sweeping); id. (citing AR 292) (Plaintiff’s examination revealed “no significant swelling” and 

“full range of motion” and Plaintiff reported “doing well,” that she “has no complaints,” and that 

her knee “feels good”); id. (citing AR 345) (Plaintiff’s “Lower extremities exam is within 

[normal] limits.”). 

Next, the ALJ concluded that the medical evidence showed Plaintiff’s back problems 

were mostly normal. Id. (citing AR 279) (Plaintiff was a “great candidate for physical therapy,” 

had “normal range of motion,” and back pain was “typical of decreased lumbosacral strength”). 

Finally, the ALJ noted that Plaintiff performed a “full range of daily activities” inconsistent with 

the severity of her complaints. See id. (citing AR 182-89) (Plaintiff reported caring for children 

and picking up son from the bus stop, preparing dinner in the evening, and performing personal 

care unassisted). 

The ALJ offered three clear and convincing reasons for rejecting claimant’s symptom 

testimony that are supported by substantial evidence in the record. “If the ALJ’s credibility 

finding is supported by substantial evidence in the record, [the court] may not engage in secondguessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Thus, the Court finds that the 

ALJ did not err in evaluating the credibility of claimant’s symptom testimony. 

C. Lay Witness Testimony 

Finally, Plaintiff argues that the ALJ rejected third-party testimony without giving 

specific and germane reasons for doing so. In determining whether a claimant is disabled, an 

ALJ must consider lay witness testimony concerning a claimant’s ability to work. Stout v. 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 17 of 19
PAGE 18 – OPINION AND ORDER 

Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006). Such testimony as to a claimant’s symptoms is 

competent evidence that the Commissioner must take into account. Dodrill v. Shalala, 12 F.3d at 

919; Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). An ALJ cannot disregard lay testimony 

without comment. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). “If an ALJ wishes to 

discount the testimony of lay witnesses, he [or she] must give reasons that are germane to each 

witness.” Dodrill, 12 F.3d 915 at 919. 

Here, Plaintiff’s mother-in-law stated that Plaintiff “can’t sit or stand for any length of 

time.” AR 245. A friend of Plaintiff’s also stated that Plaintiff “can’t sit for any length of time or 

stand up for any length of time.” AR 247. Plaintiff’s father stated that Plaintiff “does not have 

the ability to stand and lean over the sink” to do dishes. AR 246. Plaintiff’s husband stated that 

Plaintiff is “unable to sit in a boat and fish” or “hunt and walk” with him anymore. AR 248. A 

co-worker stated, “Both standing and sitting for extended periods of time caused her great 

anguish.” AR 249. This testimony contradicts the ALJ’s determination that Plaintiff had the RFC 

to sit for up to six hours and stand/walk for up to four hours. AR 19. 

The ALJ discussed all of the lay testimony. AR 21. The ALJ explained that the “objective 

evidence . . . does not support limitations to the degree reported” in the lay testimony. Id. The 

ALJ noted that Plaintiff’s medical records indicate improvement following her knee surgery and 

that Plaintiff’s back problem did not require back surgery. Id. Thus, the ALJ assigned the third 

party reports only “some weight.” Id. The Court finds that the ALJ provided reasons germane to 

each witness’s testimony and, therefore, did not err in rejecting the lay witness testimony. 

Dodrill, 12 F.3d 915 at 919. 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 18 of 19
PAGE 19 – OPINION AND ORDER 

CONCLUSION 

The Commissioner’s conclusion that the Plaintiff was capable of performing past relevant 

work is based on the proper legal standards and the findings are supported by substantial 

evidence in the record. The Commissioner’s decision is AFFIRMED. 

IT IS SO ORDERED. 

DATED this 25th day of November, 2015. 

 /s/ Michael H. Simon 

Michael H. Simon 

 United States District Judge 

Case 1:14-cv-01627-SI Document 21 Filed 11/25/15 Page 19 of 19