IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DENORA L. MORFORD, Case No. 6:15-cv-01216-SB

Plaintiff, OPINION AND

ORDER

v.

CAROLYN W. COLVIN,

Commissioner of Social Security,

Defendant.

 

BECKERMAN, Magistrate Judge.

Denora Morford (“Morford”) brings this appeal challenging the Commissioner of Social

Security’s (“Commissioner”) denial of her application for Supplemental SecurityIncome underTitle

XVI of the Social Security Act, 42 U.S.C. § 1381-83f. The Court has jurisdiction to hear this appeal

pursuant to 42 U.S.C. § 1383(c)(3), which incorporates the review provisions of 42 U.S.C. § 405(g).

For the reasons that follow, the Court affirms the Commissioner’s denial of Morford’s application

for benefits.

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I. FACTS AND PROCEDURAL HISTORY

Morford was born in February 1973, making her thirty-nine years old on April 26, 2012, the

amended alleged disability onset date.1 Morford has a high school education and completed some

college coursework in criminal justice at Linn-Benton Community College in Albany, Oregon.

Morford has no past relevant work experience. In her application for Supplemental Security Income,

filed on April 26, 2012, Morford alleges disability due primarily to headaches, spells of dizziness

and faintness, and asthma.

On January 10, 2011, a little over a year before the amended alleged disability onset date,

Morford began a four-day epilepsy monitoring study based on reports of daily blackouts, twitching,

fainting, and seizures. Electroencephalogram (“EEG”) and electrocardiogram (“EKG”) testsshowed

no significant abnormalities, and it was determined that Morford’s episodes were related to stress.

(Tr. 348.)

On March 23, 2011, Morford visited the emergency room department at Good Samaritan

Regional Medical Center, complaining of a syncopal episode. Diagnostic studies again proved to be

unremarkable.2

1 Morford previously applied for disability benefits in December 2002, March 2005, and

April 2011. Morford’s prior applications were denied at the administrative level, and she did not

appeal to federal court.

2 The record indicates that Morford has visited medical providers on a number of occasions,

complaining of passing out and twitching. All subsequent test results were found to be normal. (See

Tr. 353, “She has had extensive evaluation for [syncopal episodes] including inpatient monitoring,

EEGs, neuro consult and now a Holter study . . . all of which have been unrevealing”; Tr. 380, “Has

recently been evaluated through neurology for possible seizures. EEG and all testing has been

completely normal”; Tr. 491, “She says she has had several scans and a Holter monitor and lots of

lab tests and all of the results are normal. She even has had four days of video EEG monitoring that

was normal.”)

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On June 20, 2011, Morford presented for her second consultation with Dr. Jon Sobotka (“Dr.

Sobotka”). Morford reported that she continued to experience spells of dizziness, she was working

between eight to twelve hours per week at K-Mart, and the “job has been helpful for not only extra

money, but giving her a sense of purpose and she feels successful at it.” (Tr. 489.) Morford also

reported that her employer had been informed that these episodes of dizziness “are not caused by

major medical problems and do not pose a risk of causing major medical problems . . . , but she

could be able to recuperate at work and resume her duties if they would allow her to do so.” (Tr.

489.) Dr. Sobotka advised Morford to continue taking psychotropic medication for schizoaffective

and conversion disorders, and made “[a]n effort” to help Morford “see the benefits of working[.]”

(Tr. 490.)

On December 8, 2011, Morford presented for an assessment at Benton Health Services in

Corvallis, Oregon. On mental status exam, Judy Vogelsang (“Vogelsang”), a licensed clinical social

worker, assessed a Global Assessment of Functioning (“GAF”) score of 61, and noted that Morford

demonstrated an “average” intellect and her memorywas “grossly intact, [but] not formally tested.”3

(Tr. 575.)

On February 29, 2012, Morford presented for a consultation with Dr. Richard Lafrance (“Dr.

Lafrance”). Morford reported that she had been attending counseling every other week at Benton

County Mental Health, she had “not had any episodes of syncope or collapse,” she felt “her spells

are better because she is getting counseling,” and a recent return to work had “gone well.” (Tr. 513.)

3 AGAF score of sixty-one to seventyindicates that the individual “generallyfunctions pretty

well,” but does experience “mild symptoms” or “some difficulty” in regard to social, occupational,

or school functioning. Sims v. Barnhart, 309 F.3d 424, 427 n.5 (7th Cir. 2002) (citation and brackets

omitted).

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Dr. Lafrance noted that Morford’s episodes were “in control - likely resolving conversion disorder.”

(Tr. 514.)

Morford returned to Vogelsang’s office on March 11, 2012, and reported that “she has had

no further fainting spells.” (Tr. 582.) When Vogelsang sought an explanation for this improvement,

Morford claimed the cessation of the episodes was due to “having someone to talk to about things.”

(Tr. 582.) On June 8, 2012, however, Morford informed Vogelsang that her fainting spells had

returned.

On June 14, 2012, Morford was referred to Dr. Jill Spendal (“Dr. Spendal”) for a cognitive

and psychological assessment. Dr. Spendal’s diagnoses were: social phobia and schizoaffective and

conversion disorders(AxisI); borderline intellectual functioning (Axis II); pseudoseizures and carpal

tunnel syndrome per client’s report (Axis III); finances and unemployment (Axis IV); and a GAF

score of 55 (Axis V).4 Dr. Spendal also concluded that Morford “is unlikely to be able to work at a

full-time level,” because her “schizoaffective disorder and social phobia combined with borderline

intellectual functioning will make it far more difficult for her to handle the stress and demands[.]”

(Tr. 619.)

On June 20, 2012, Morford completed an adult function report in support of her application

for benefits. Morford stated that her “illnesses, injuries, or conditions” limit her ability to work in

the following way: “I pass out and can’t speak or move.”5(Tr. 223.) Morford also stated that she is

4

“A GAF score of 55 indicates moderate symptomatology and difficulties in social,

occupational, or school functioning.” Dragon v. Comm’r of Soc. Sec., 470 F. App’x 454, 457 (6th

Cir. 2012).

5 According to Morford, she has lost consciousness on only one occasion during these selfreported “spells” of passing out. (Tr. 49.)

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capable of preparing meals, caring for her daughter, handling her own personal care, driving, paying

bills, counting change, handling a savings account, using a checkbook, reading, watching television,

and cleaning, doing laundry, and shopping on a weekly basis. Morford added that her impairments

impact her ability to lift, bend, stand, walk (she needs to rest after walking one mile), and climb

stairs.

On June 28, 2012, Dr. Spendal completed a mental residual function capacity assessment,

which described Morford as moderately limited in twelve of twenty categories of mental activity,

markedly limited in three (the ability to travel in unfamiliar places or use public transportation, the

ability to maintain attention and concentration for an extended period, and the ability to “complete

a normal workday and workweek without interruptions from psychologically based symptoms and

to perform at a consistent pace without an unreasonable number and length of rest periods”), and not

significantly limited in five. (Tr. 621.) Dr. Spendal added that Morford has a borderline intelligence

quotient (“IQ”).

Dr. Richard Winslow (“Dr. Winslow”), a non-examining state agency psychologist,

completed a psychiatric review technique assessment on July 16, 2012, wherein he evaluated

Morford’s impairments under listings 12.02 (organic mental disorders), 12.04 (affective disorders),

12.06 (anxiety disorders), and 12.07 (somatoform disorders). Dr. Winslow reviewed the evidence

and concluded that the limitations imposed by Morford’s impairments failed to satisfy the above

listings.

That same day (July 16, 2012), Dr. Winslow also completed a mental residual functional

capacity assessment, which described Morford as moderately limited in three of sixteen categories

of mental activity and not significantly limited in thirteen. Dr. Winslow added that Morford can

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consistently maintain concentration, persistence, and pace “for simple tasks for normal [two] hour

work periods,” but she “cannot consistentlycomplete more complex tasks,” and that Morford should

be limited to only occasional, brief interaction with the general public due to her psychological

symptoms. (Tr. 82.)

Dr. Dorothy Anderson (“Dr. Anderson”), a non-examining state agency psychologist,

completed a second psychiatric review technique assessment on December 6, 2012, wherein she

evaluated Morford’s impairments under listings 12.02, 12.04, 12.06, and 12.07. Dr. Anderson

concluded that the limitations imposed by Morford’s impairments failed to satisfy listings 12.02,

12.04, 12.06, or 12.07.

Also on December 6, 2012, Dr. Anderson completed a second mental residual functional

capacity assessment, which described Morford as moderately limited in three of sixteen categories

of mental activity and not significantly limited in thirteen. Dr. Anderson also concluded that (1)

Morford “can consistently understand and remember short [one to two] step instructions,” but she

“cannot consistently remember more detailed instructions,” and (2) Morford needs to be limited only

to brief, occasional interaction with the general public due to her psychological symptoms. (Tr. 92-

93.)

An administrative law judge (“ALJ”) convened a hearing on November 21, 2013, at which

Morford testified about the limitations resulting from her impairments. Morford testified that she

suffers primarilyfrom headaches, spells of dizziness, and asthma; she has a fifteen-year-old daughter

whom she drives to and from school; she works four hours per week at K-Mart; her doctor

recommends that she treat her headaches with Tylenol, which alleviates the pain at times; she is able

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to cook, clean, and shop, but she tries to avoid groups of people; and she earned “pretty good” grades

while attending Linn-Benton Community College and studying criminal justice. (Tr. 55.)

The ALJ posed a series of questions to a vocational expert (“VE”), who testified at Morford’s

hearing. The ALJ first asked the VE to assume that a hypothetical worker of Morford’s age,

education, and work experience could perform a full range of work, but (1) was limited to simple,

repetitive, routine tasks requiring no more than occasional brief interaction with the general public,

and (2) needed to avoid exposure to “heights, moving machinery and similar hazards.” (Tr. 58.) The

VE testified that the hypothetical worker could be employed as a dishwasher, laundry laborer, and

packager. The VE further testified that there were 225,000 dishwasher jobs in the national economy,

including 3,000 jobs in Oregon, 90,000 laundry laborer jobs in the national economy, including 800

jobs in Oregon, and 355,000 packager jobs in the national economy, including 4,000 jobs in Oregon.

(Tr. 58.)

The ALJ next asked the VE about the customary tolerances of employers with respect to

tardiness, absenteeism, break periods, and being off-task. The VE testified that tardiness is expected

to “be kept to an absolute minimum,” that unexcused or unscheduled absences cannot exceed more

than one per month, that there are typically three break periods each day, ranging from ten to fifteen

minutes (the morning and afternoon breaks) to thirty to sixty minutes (the lunch break), and that an

employee would be terminated if they were off-task for more than ten percent of each workday. (Tr.

59.)

Morford’s attorney also posed two questions to the VE. First, Morford’s attorney asked the

VE to assume that a hypothetical worker of Morford’s age, education, and work experience “would

have at least one [dizziness or faintness] episode during [each] workweek [that] would make this

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individual nonfunctional on an unpredictable basis for [thirty] to [sixty] minutes at a time.” (Tr. 60.)

The VE confirmed that such a limitation would preclude the hypothetical worker from sustaining

gainful employment. Second, Morford’s attorney asked the VE to assume that the hypothetical

worker suffered from marked limitations in (1) maintaining attention and concentration for extended

periods of time, (2) completing a normal workday and workweek without interruptions from

psychological-based symptoms, (3) performing at a consistent pace without an unreasonable number

of break periods, and (4) traveling to unfamiliar places or using public transportation. The VE stated

that the first three limitations “alone or in any combination” would preclude gainful employment.

(Tr. 61.)

In a written decision issued on January 7, 2014, the ALJ applied the five-step sequential

evaluation process set forth in 20 C.F.R. § 416.920(a)(4), and found that Morford was not disabled.

See infra Part II.A-B. TheSocial SecurityAdministration Appeals Council denied Morford’s petition

for review, making the ALJ’s decision the Commissioner’s final decision. Morford timely appealed

to federal court.

II. THE FIVE-STEP SEQUENTIAL PROCESS

A. Legal Standard

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

activity by reason of anymedically 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). Those five steps are as follows:

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(1) Is the claimant presently working in a substantially gainful activity? (2) Is the

claimant’s impairment severe? (3) Does the impairment meet or equal [one of the

listed impairments]? (4) Is the claimant able to perform any work that he or she has

done in the past? and (5) Are there significant numbers of jobs in the national

economy that the claimant can perform?

Id. at 724-25. The claimant bears the burden of proof for the first four steps in the process.

Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the

burden at any of the first four steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137,

140-41 (1987).

The Commissioner bears the burden of proof at step five of the process, where the

Commissioner must show 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.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If the

Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954

(citations omitted).

B. The ALJ’s Decision

At the first step of the sequential process, the ALJ found that Morford had not engaged in

substantial gainful activity since April 26, 2012, the date she filed the application. At the second

step, the ALJ found that Morford had the severe medically determinable impairments of borderline

intellectual functioning, depression, anxiety, and “probable” schizoaffective and somatoform

disorders. (Tr. 13.)

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At the third step, the ALJ found that Morford’s combination of impairments was not the

equivalent of those on the Listing of Impairments.6 The ALJ then assessed Morford’s residual

functional capacity (“RFC”) and found that she could “perform a full range of work at all exertional

levels,” subject to the following limitations: (1) she would need to avoid exposure to heights, moving

machinery, and similar hazards, (2) she would need to be limited to simple, repetitive, routine tasks,

and (3) she would need to be limited to no more than occasional, brief interaction with the general

public. (Tr. 15.)

At the fourth step, the ALJ concluded that Morford had no past relevant work experience.7

At the fifth step, the ALJ concluded that there were other jobs existing in significant numbers in the

national economy that Morford could perform, such as a dishwasher, laundry laborer, and hand

packager. Accordingly, the ALJ concluded that Morford was not disabled, as defined under the

Social Security Act, during the relevant time period.

III. STANDARD OF REVIEW

The district court may set aside a denial of benefits only if the Commissioner’s findings are

“‘not supported by substantial evidence or [are] based on legal error.’” Bray v. Comm’r Soc. Sec.

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880,

882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla [of evidence]

but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as

6 The Listing of Impairments is found at 20 C.F.R. Part 404, Subpart P, Appendix 1, and

described at 20 C.F.R. §§ 404.1525, 404.1526, 416.925, 416.926.

7 The ALJ observed that Morford “has consistently worked, but never received earnings

allowing her to meet the criteria of past relevant work[.]” (Tr. 32.)

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adequate to support a conclusion.’” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

1995)).

The district court “cannot affirm the Commissioner’s decision ‘simply by isolating a specific

quantum of supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001)

(quoting Tackett, 180 F.3d at 1097). Instead, the district court must consider the entire record,

weighing both the evidence that supports the Commissioner’s conclusions, and the evidence that

detracts from those conclusions. Id. However, if the evidence as a whole can support more than one

rational interpretation, the ALJ’s decision must be upheld; the district court may not substitute its

judgment for the judgment of the ALJ. Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d

1149, 1152 (9th Cir. 2007)).

IV. DISCUSSION

In this appeal, Morford argues that the ALJ erred by failing to: (1) offer clear and convincing

reasons for discrediting Dr. Spendal’s opinion evidence; (2) include conversion disorder as a severe

impairment at step two of the sequential analysis; (3) conclude at step three of the sequential analysis

that Morford is presumptively disabled under listing 12.05C; and (4) account for the limitations

resulting from Morford’s “pseudoseizures” in formulating the RFC. As explained below, the Court

concludes that the Commissioner’s decision is free of legal error and supported by substantial

evidence.

A. Medical Opinion Evidence

1. Applicable Law

“There are three types of medical opinions in social security cases: those from treating

physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc. Sec.

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Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

1995)). In the event “a treating or examining physician’s opinion is contradicted by another doctor,

the ‘[ALJ] must determine credibility and resolve the conflict.’” Id. (quoting Thomas v. Barnhart,

278 F.3d 947, 956-57 (9th Cir. 2001)). “An ALJ may only reject a treating physician’s contradicted

opinions by providing ‘specific and legitimate reasons that are supported by substantial evidence.’”

Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (quoting Ryan v. Comm’r of Soc. Sec., 528

F.3d 1194, 1198 (9th Cir. 2008)).

“An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and

thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof,

and making findings.’” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Reddick v.

Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Merely stating conclusions, however, is insufficient:

“The ALJ must do more than state conclusions. He must set forth his own interpretations and explain

why they, rather than the doctors’, are correct.” Id. “[A]n ALJ errs when he rejects a medical opinion

or assigns it little weight while doing nothing more than ignoring it, asserting without explanation

that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails

to offer a substantive basis for his conclusion.” Id. at 1012-13 (citing Nguyen v. Chater, 100 F.3d

1462, 1464 (9th Cir. 1996)).

2. Application of Law to Fact

Morford argues that the ALJ failed to offer legally sufficient reasons for discounting Dr.

Spendal’s opinions, in particular her opinion that Morford could not sustain full-time work. The

Court disagrees.

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Dr. Spendal’s opinions conflicted with those of the non-examining state agency medical

consultants, none of whom opined that Morford would be unable to sustain full-time work. The ALJ

was therefore required to provide specific and legitimate reasons for assigning limited weight to Dr.

Spendal’s opinions. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)

(“[I]n the case of a conflict ‘the ALJ must give specific, legitimate reasons for disregarding the

opinion of the treating physician.’”); Killan v. Barnhart, 226 F. App’x 666, 668 (9th Cir. 2007)

(“Killian’s contention that the ALJ erred when he discounted her treating physician’s opinion is

flawed because the treating physician’s opinion conflicted with that of a nonexamining physician,

and the ALJsupported his decision with specific and legitimate reasons.”). The ALJ met that burden

here.

The ALJ provided several specific and legitimate reasons for discounting Dr. Spendal’s

opinion. For example, the ALJ discounted Dr. Spendal’s opinion because she failed to account for

Morford’s inconsistent reports in 2012. (Tr. 32); see Townsend v. Astrue, No. 6:12-cv-00261-SI,

2013 WL 687042, at *4 (D. Or. Feb. 25, 2013) (explaining that specific and legitimate reasons for

rejecting a doctor’s opinion include “inconsistencywith a claimant’s testimony”). In her consultative

report, Dr. Spendal concluded that, if Morford worked more than ten hours a week, it “will likely

lead to more [episodes of faintness].” (Tr. 617.) On January 18, 2012, however, Morford reported

that she had not experienced any episodes of faintness since she started bi-weekly counseling with

Vogelsang, and Dr. Lafrance noted that these episodes were under control.8(Tr. 516-17.) When

Morford returned to Dr. Lafrance’s office on February 29, 2012, Morford reported that she had not

8 Morford did not begin individual counseling with Vogelsang until December 2011. (SeeTr.

578-80.)

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experienced any episodes of faintness as a result of her counseling, and Dr. Lafrance noted that the

“[e]pisodes are in control - likely resolving conversion disorder.” (Tr. 513-14.) Similarly, when

Morford visited Vogelsang’s office on March 11, 2012, Morford reported that “she has had no

further fainting spells,” which Morford attributed to “having someone to talk to about things,” and

that she was “positive about having returned to work and enjoying the social aspect of this.” (Tr.

582-83.) Although Morford reported that her spells of faintness had returned on June 8, 2012,

Morford had not attended counseling during the preceding three months: “[Morford]says she needs

to continue [individual counseling] at this time because she started having ‘fainting’ spells

again. . . . [Morford] has not seen her primary care physician since our last appointment three months

ago[.]” (Tr. 581.)

None of the records discussed above were made available to Dr. Spendal: “No records were

available from 2012; most recent therapy records were from December 2011.” (Tr. 608.) That is

significant because Morford does not allege the onset of disability until April 26, 2012, and because

impairments that respond favorably to conservative treatment are not disabling. See Gray v. Colvin,

12-10915, 2013 WL 6241588, at *8 (C.D. Cal. Dec. 3, 2013) (stating that “responding favorably to

conservative treatment undermines claim of disabling symptoms”) (citation omitted); Fox v. Astrue,

No. 9-06178-JE, 2011 WL 839186, at *3 (D. Or. Mar. 3, 2011) (noting that the plaintiff “responded

favorably to conservative treatment such as medication and counseling”). In light of the foregoing,

the Court concludes the ALJ did not err in discounting Dr. Spendal’s opinion, because it failed to

account for reports by Morford in 2012 that her condition was controlled with counseling.

The ALJ also discounted Dr. Spendal’s opinion on the ground that it was based largely on

Morford’s self-reports, which the ALJ found to be incredible. “‘An ALJ may reject a . . . physician’s

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opinion if it is based to a large extent on a claimant’s self-reports that have been properly discounted

as incredible.’” Burrell v. Colvin, 775 F.3d 1133, 1140-41 (9th Cir. 2014) (quoting Tommasetti v.

Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)). Morford does not dispute on appeal whether her selfreports have been properly discounted as incredible; rather, she disputes only whether Dr. Spendal’s

opinion was based to a large extent on such reports. A review of the consultative report prepared by

Dr. Spendal reveals that she administered a battery of tests to Morford, and reached conclusions

based on the results of those tests. However, it also reveals that Dr. Spendal relied to a large extent

on Morford’s self-reports. For example, Morford informed Dr. Spendal that she did not believe she

could work more than ten hours a week due to her impairments. (Tr. 605.) Dr. Spendal accepted that

self-report, and made the following recommendation to the Social SecurityAdministration: “The ten

hours a week she works at K-Mart is likely to be the maximum of what she can handle. More work

will likely lead to more seizures.” (Tr. 617.) Dr. Spendal also necessarily relied on Morford’s selfreports concerning her level of impairment in 2012, the year of alleged onset, because, as discussed

above, Dr. Spendal was not provided copies of Morford’s treatment or therapy records from 2012,

which demonstrated that Morford’s “seizures” were well controlled by counseling. The Court finds

that the ALJ’s conclusion that Dr. Spendal relied largely on Morford’s self-reports is reasonable and

supported by substantial evidence.

The ALJ also discounted Dr. Spendal’s opinion based on observations from other medical

providers that did not corroborate Dr. Spendal’s opinions. Specific and legitimate reasons for

rejecting a doctor’s opinion include non-corroborating observations from other medical providers.

See Barnard v. Comm’r of Soc. Sec. Admin., 286 F. App’x 989, 991 (9th Cir. 2008) (affirming

rejection of doctor’s opinion under specific and legitimate reasons standard, and noting that the ALJ

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pointed to, inter alia, “observations of two prior physicians that did not corroborate the doctor’s

conclusion”). The ALJ observed that Dr. Spendal “overlooks or was unaware” of findings from Dr.

Sobotka and Vogelsang suggesting that Morford may be motivated by secondary gain. (Tr. 32.)

Specifically, Vogelsang observed that “[s]econdary gains may be possible, [because Morford] is

clearly deriving attention from family and co-workers.” (Tr. 576.) Similarly, Dr. Sobotka, a treating

psychiatrist, observed that Morford “does not perceive that there may be some secondary gain in the

support and attention from these episodes or that such basic psychological needs may be better met

by keeping her job.” (Tr. 599.) The ALJ did not err in discounting Dr. Spendal’s opinion on this

ground. See Moody v. Comm’r of Soc. Sec. Admin., No. 3:14-cv-01756-MA, 2015 WL 6948578, at

*5 (D. Or. Nov. 10, 2015) (stating that the “plaintiff’s motivation for secondarygain is a specific and

legitimate reason, sufficient in and of itself to reject [the doctor’s] opinion”).

The ALJ also discounted Dr. Spendal’s opinion in favor of, among other things, a conflicting

opinion offered by Dr. Anderson, a non-examining state agency medical consultant. Unlike Dr.

Spendal’s opinions, the ALJ found Dr. Anderson’s opinions to be the most accurate summary of

Morford’s credible symptoms. (Tr. 31.) Dr. Anderson’s opinion, coupled with the reasons described

above, constitutes the substantial evidence necessary to affirm the ALJ’s rejection of Dr. Spendal’s

opinions. See Cha Yang v. Comm’r of Soc. Sec. Admin., 488 F. App’x 203, 204 (9th Cir. 2012)

(“[A]lthough a state agency physician’s opinion, standing alone, cannot constitute substantial

evidence, it can be substantial evidence when the ALJ points to other evidence as well.”).

In sum, the Court concludes that the ALJ’s rejection of Dr. Spendal’s opinions was supported

by substantial evidence and should not be disturbed on appeal. Cf. Jackson v. Colvin, No. 14-9935,

2016 WL 1273159, at *5 (C.D. Cal. Mar. 31, 2016) (“The ALJ needed only one specific and

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legitimate reason to reject the opinion of an examining physician, and he gave one here—that Dr.

Lee’s opinion was based on Jackson’s unreliable self-reporting.”).

B. Step Two Severity Findings

Morford argues that the ALJ erred by failing to find that her conversion disorder was a severe

impairment at step two of the five-step sequential process. The Court finds that any such error was

harmless. See Mondragon v. Astrue, 364 F. App’x 346, 348 (9th Cir. 2010) (“Any alleged error at

step two was harmless because step two was decided in [claimant’s] favor with regard to other

ailments.”) (citation omitted).

Morford suggests that failing to include conversion disorder as a severe impairment at step

two became prejudicial at step four because the ALJ did not account for the fact that Morford’s

conversion disorder would cause her to have at least one pseudoseizure each workweek, which

would render Morford “nonfunctional on an unpredictable basis” for thirty to sixtyminutes at a time.

(See Pl.’s Br. at 19-20.) The VE testified that such a limitation would prevent a hypothetical worker

from sustaining gainful employment. (Compare Pl.’s Br. at 8, with Pl.’s Br. at 19, and Tr. 60.)

However, “[a]n ALJ’s RFC need only incorporate credible limitations supported by substantial

evidence in the record and [it] must be consistent with the restrictions identified in the medical

testimony.” Burke v. Comm’r of Soc. Sec., No. 13-1890-BR, 2015 WL 769951, at *5 (D. Or. Feb.

23, 2015). Morford has not pointed to any credible evidence indicating that her impairments would

lead to weekly pseudoseizures that would render Morford nonfunctional on an unpredictable basis

for thirty to sixty minutes at a time. The only evidence that would appear to support the degree of

limitation advanced by Morford comes from her own self-reports: “[Morford] stated it takes her

[thirty] to [sixty] minutes to recover from these [pseudoseizures].” (Tr. 605.) Morford does not

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challenge the ALJ’s conclusion that her self-reports are not credible. For all of these reasons, the

Court finds that the ALJ’s failure to include conversion disorder as a severe impairment at step two

was harmless, and did not prejudice later steps of the sequential evaluation process.

C. Step Three Equivalence Determination

Morford argues that the ALJ erred by failing to conclude at step three of the sequential

analysis that Morford is presumptively disabled under listing 12.05C (intellectual disability). The

Court disagrees.

To satisfy listing 12.05C, a claimant must establish: “(1) significantly subaverage general

intellectual functioning with deficits in adaptive functioning with an onset before age [twenty-two];

(2) a valid verbal, performance, or full scale IQ of [sixty] to [seventy]; and (3) a physical or other

mental impairment imposing an additional and significant work-related limitation of function.”

Stavrakis v. Colvin, No. 6:12-cv-1929-SI, 2014 WL 1584494, at *4 (D. Or. Apr. 21, 2014) (citation

omitted).

The parties dispute onlywhether Morford has established that she suffered from significantly

subaverage intellectual functioning with deficits in adaptive functioning with an onset before age

twenty-two. “Although the Ninth Circuit has never addressed this issue, other circuits and district

courts within the Ninth Circuit have presumed that a valid adult IQ score is evidence that the

impairment existed during the claimant’s developmental period.” Brooks v. Astrue, No. 11-1252-SI,

2012 WL 4739533, at *5 (D. Or. Oct. 3, 2012) (emphasis added) (citation omitted). Some circuit

courts “have adopted a per se rebuttable presumption of impairment during the developmental period

when the claimant has presented evidence of a valid IQ score of 60 to 70,” while others have

required “the claimant to produce additional evidence that supports the finding of onset during the

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developmental period.” Id. (citing, inter alia, Hodges v. Barnhart, 276 F.3d 1265, 1268-69 (11th Cir.

2001)). A number of the judges in this district have adopted the approach that “a valid adult IQ score

can be reflective of an impairment that manifested during the claimant’s developmental period.” Id.

at *6.

In the present case,Morford was given the Wechsler Adult Intelligence Scale, Fourth Edition,

battery of tests. (Tr. 608.) Dr. Spendal’s report indicates that Morford obtained a full-scale IQ score

of seventy-one, a verbal comprehension score of eighty, a perceptual reasoning score of seventy-one,

a processing speed score of eighty-one, and a working memory score of sixty-six. (Tr. 609.) Morford

argues that her working memory score of sixty-six qualifies as “a valid verbal, performance, or full

scale IQ score” within the sixty to seventy range, which, in turn, demonstrates that she suffered from

significantly subaverage intellectual functioning with deficits in adaptive functioning and an onset

before age twenty-two. This argument is unpersuasive. Morford’s working memory score fails to

satisfy Listing 12.05C, because that listing requires a verbal, performance, or full scale IQ of sixty

through seventy. See Flanigan v. Colvin,12-1706, 2013 WL 6243845, at *11 (E.D. Mo. Dec. 3,

2013) (“Flanigan’s argument that her working memory score of [sixty-eight] on the Weschler

Intelligence Test qualifies her under 112.05D and 12.05C is simply wrong, as the Listings require

a ‘verbal, performance, or full scale IQ of [sixty] through [seventy].’ Flanigan received a full-scale

score of [eighty], a verbal-comprehension score of [eighty-five], and a perceptual-reasoning index

of [eighty-four], thereby excluding her from Listing 112.05D and 12.05C.”)

Furthermore, the Ninth Circuit has held that an ALJ may discredit an IQ score in light of

conflicting evidence. Thresher v. Astrue, 283 F. App’x 473, 475 (9th Cir. 2008). The ALJ in this

case discounted the IQ scores derived from Dr. Spendal’s examination:

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The record . . . does not show that the claimant’s condition meets or potentially

equals the criteria of [listing] 12.05C. While the claimant has low IQ scores and a

diagnosis of borderline intellectual functioning, . . .she also has a history of adaptive

functioning far above that consistent with mild mental retardation. The record shows

that the claimant attended college for four years, taking courses in criminal justice.

She did not earn a degree, but she indicated that she felt she did well in her classes.

In addition to continuing ongoing work activity, she also maintains fairly normal

activities of daily life, including caring for a teenage child.

(Tr. 14.) The ALJ made a similar observation later in his written decision: “[The record]shows that

despite her claims of low IQ, . . . [Morford] repeatedly, if not invariably, shows a normal or nearnormal mental status examination[.]” (Tr. 18.) The ALJ added that Morford consistentlymaintained

a balanced till while serving as a cashier at K-Mart, which further supports the ALJ’s conclusion that

Morford has a history of functioning that is inconsistent with a diagnosis of mild mental retardation.

(Tr. 25, 581, “She is working at K-Mart, she is a cashier, ‘I’m doing good, I haven’t had a bad till

yet.’”) Accordingly, the Court finds that the ALJ provided legally sufficient reasons for his

conclusion that Morford is not presumptively disabled under Listing 12.05C. See Daniels v. Comm’r

of Soc. Sec., 70 F. App’x 868, 869, 872-73 (6th Cir. 2003) (noting that the claimant had a

performance IQ score of 67, but nevertheless concluding that substantial evidence supported the

ALJ’s finding that the claimant failed to satisfy listing 12.05C, because no psychologist had

concluded that the claimant suffered “significantly subaverage general intellectual function” or

“deficits in adaptive functioning,” and because the claimant’s educational background and work

experience demonstrated an “abilityto perform relativelycomplicated tasks”); see also Dragon, 470

F. App’x at 462-63 (“The regulations permit the ALJ to question the validity of test results in

conjunction with other factors. In assessing the validity of a claimant’s I.Q., ‘[i]nformation from both

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medical and nonmedical sources may be used to obtain detailed descriptions of the individual’s

activities of daily living’”).

D. RFC Determination

Morford also argues that the ALJ erred byfailing to account for the limitations resulting from

her “pseudoseizures” in formulating the RFC. For the reasons explained supra Part IV.B., the Court

concludes that the RFC determination accounted for all of the credible limitations resulting from

Morford’s impairments.

V. CONCLUSION

For all the reasons stated herein, the Court affirms the Commissioner’s denial of Morford’s

application.

IT IS SO ORDERED.

Dated this 1st day of June, 2016.

 

STACIE F. BECKERMAN

United States Magistrate Judge

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