IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JESSICA M. WATKINS, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Commissioner of Social 

Security, 

Defendant. 

Lisa R.J. Porter 

KP Law PC 

5200 SW Meadows Rd., Suite 150 

Lake Oswego, Oregon 97035 

Attorney for plaintiff 

Billy J. Williams 

Ronald K. Silver 

Case No. 3:14-cv-01309-AA 

OPINION AND ORDER 

United States Attorney's Office 

1000 S.W. Third Avenue, Suite 600 

Portland, Oregon 97201 

Sarah L. Martin 

Social Security Administration 

Office of General Counsel 

701 Fifth Avenue, Suite 2900 M/S 221A 

Seattle, Washington 98104 

Attorneys for defendant 

Page 1 - OPINION AND ORDER 

Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 1 of 17
AIKEN, Chief Judge: 

Plaintiff Jessica Watkins brings this action pursuant to the 

Social Security Act ("Act") to obtain judicial review of a final 

decision of the Commissioner of Social Security ("Commissioner") . 

The Commissioner denied plaintiff's application for Title XVI 

supplemental security income ("SSI"). For the reasons set forth 

below, the Commissioner's decision is affirmed and this case is 

dismissed. 

PROCEDURAL BACKGROUND 

On October 12, 2010, plaintiff applied for SSI. Tr. 163-72. 

Her application was denied initially and upon reconsideration. Tr. 

118. On August 9, 2012, a hearing was held before an Administrative 

Law Judge ("ALJ"), wherein plaintiff was represented by counsel and 

testified, as did a vocational expert ("VE"). Tr. 65-75. On August 

29, 2012, the ALJ issued a decision finding plaintiff not disabled 

within the meaning of the Act. Tr. 15-29. After the Appeals Council 

denied her request for review, plaintiff filed a complaint in this 

Court. 

STATEMENT OF FACTS 

Born on September 3, 1976, plaintiff was 8 years old on the 

alleged onset date of disability and 35 years old at the time of 

the hearing. Tr. 27, 48, 55, 162. Plaintiff received her GED. Tr. 

50, 188. She worked previously as a sales representative, carnival 

ride operator, and a fast food worker. Tr. 50-53, 186, 189. 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 2 of 17
Plaintiff alleges disability as of September 3, 1984, due to manic 

depression, anxiety, bi-polar disorder, high blood pressure, 

hypothyroidism, type two diabetes, and her inability to regulate 

her anger and aggressiveness arising from post-traumatic stress 

disorder ("PTSD"). Tr. 163. 

STANDARD OF REVIEW 

The court must affirm the Commissioner's decision if it is 

based on proper legal standards and the findings are supported by 

substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 

501 (9th Cir. 1989) Substantial evidence is "more than a mere 

scintilla. It means such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion." Richardson v. 

Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations 

omitted). The court must weigh "both the evidence that supports and 

detracts from the [Commissioner's] conclusions." Martinez v. 

Heckler, 8 07 

interpre~tations 

F.2d 771, 772 (9th 

of the evidence are 

Cir. 198 6) . 

insignificant 

Variable 

if the 

Commissioner's interpretation is rational. Burch v. Barnhart, 400 

F.3d 676, 679 (9th Cir. 2005). 

The initial burden of proof rests upon the claimant to 

establish disability. Howard v~ Heckler, 782 F.2d 1484, 1486 (9th 

Cir. 1986). To meet this burden, the claimant must demonstrate an 

"inability to engage in any substantial gainful activity by reason 

of any medically determinable physical or mental impairment which 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 3 of 17
can be expected . . to last for a continuous period of not less 

than 12 months." 42 U.S.C. § 423(d) (1) (A) 

The Commissioner has established a five-step sequential 

process for determining whether a person is disabled. Bowen v. 

Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. First, the 

Commissioner determines whether a claimant is engaged in 

"substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. 

§ 416.920(b). If so, the claimant is not disabled. 

At step two, the Commissioner evaluates whether the claimant 

has a "medically severe impairment or combination of impairments." 

Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 416.920(c). If the 

claimant does not have a severe impairment, she is not disabled. 

At step three, the Commissioner determines whether the 

claimant's impairments, either singly or in combination, meet or 

equal "one of a number of listed impairments that the 

[Commissioner] acknowledges are so severe as to preclude 

substantia 1 gain f u 1 activity . " Yuck e r t , 4 8 2 U . S . at 14 0 - 4 1 ; 2 0 

C.F.R. § 416.920(d). If so, the claimant is presumptively disabled; 

if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. 

at 141. 

At step four, the Commissioner resolves whether the claimant 

can still perform "past relevant work." 20 C.F.R. § 416.920(f). If 

the claimant can work, she is not disabled; if she cannot perform 

past relevant work, the burden shifts to the Commissioner. At step 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 4 of 17
five, the Commissioner must establish that the claimant can perform 

other work existing in significant numbers in the national and 

local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 416.920(.g). 

If the Commissioner meets this burden, the claimant is not 

disabled. 20 C.F.R. § 416.966. 

THE ALJ'S FINDINGS 

At step one of the five step sequential evaluation process 

outlined above, the ALJ found plaintiff had not engaged in 

substantial gainful activity since the application date. Tr. 20. At 

step two, the ALJ determined plaintiff has the following severe 

impairments: diabetes mellitus, obesity, peri-umbilical abdominal 

hernia, bipolar disorder, anxiety disorder, and borderline 

personality disorder. Id. At step three, the ALJ found plaintiff's 

impair~ents, either singly or in combination, did not meet or equal 

the requirements of a listed impairment. Id. 

Because she did not establish presumptive disability at step 

three, the ALJ continued to evaluate how plaintiff's impairments 

affected her ability to work. Tr. 21. The ALJ resolved that 

plaintiff possessed the residual capacity (~RFC") to perform less 

than the full range of light work: 

consisting of lifting and carrying no more than twenty 

pounds with frequent lifting or carrying of objects 

weighing up to ten pounds. There are no limitations on 

[her] ability to sit,. stand, or walk. [She] is further 

limited to no work around hazards such as unprotected 

height[s] or dangerous machinery. She cannot climb 

ladders, ropes or scaffolds. She is able to remember, 

understand, and carry out simple tasks or instructions 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 5 of 17
typical of occupations of a specific vocational 

preparation (SVP) of one or two. She cannot work with the 

general public and works best in an environment where she 

has only superficial interaction with coworkers, [with] no 

work that requires teamwork or close cooperation. 

Tr. 22. 

At step four, the ALJ determined that plaintiff could not 

perform any relevant past work. Tr. 27. At step five, the ALJ found 

that plaintiff could perform a significant number of jobs existing 

in the national and local economy, despite her impairments, such as 

hand packager and food assembler. Tr. 28. Accordingly, the ALJ 

concluded that plaintiff was not disabled under the Act. Id. 

DISCUSSION 

Plaintiff argues that the ALJ erred by: ( 1) finding her not 

fully credible; (2) failing to properly assess the testimony of lay 

witness Carol Skinner; (3) rejecting medical evidence furnished by 

Donna Wicher, Ph.D., P.C.; and (4) failing to account for all of 

her impairments in the RFC, such that the step five finding was 

invalid. 

I. Plaintiff's Credibility 

Plaintiff asserts that the ALJ failed to provide a clear and 

convincing reason, supported by substantial evidence, for rejecting 

her subjective symptom testimony concerning the severity of her 

impairments. When a claimant has medically documented impairments 

that could reasonably be expected to produce some degree of the 

symptoms complained of, and the record contains no affirmative 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 6 of 17
evidence of malingering, ~the ALJ can reject the claimant's 

testimony about the severity of symptoms only by offering 

specific, clear and convincing reasons for doing so." Smolen v. 

Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). 

A general assertion that the claimant is not credible is 

insufficient; the ALJ must ~state which . testimony is not 

credible and what evidence suggests the complaints are not 

credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 

The reasons proffered 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) (internal citation omitted). If the ~ALJ' s 

credibility finding is supported by substantial evidence in the 

record, [the court] may not engage in second-guessing." Thomas v. 

Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). 

At the hearing, when asked why she was unable to work, 

plaintiff testified: ~I blow up, can't concentrate, mind races." 

Tr. 53. She also stated, ~I constantly suffer from PSD 

[Posttraumatic Stress Disorder] It's hard to function through 

a normal day because these thoughts come up and I don't know how to 

deal with them." Id. Plaintiff reported engaging in limited 

household chores, such as dressing and cooking simple meals. Tr. 

58. When asked what she does on a typical day, plaintiff responded 

that she wakes up, cooks food, makes plans for completing household 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 7 of 17
chores, but forgets to do them because her mind is "racing 20 times 

a minute and the house is a mess." Id. 

After summarizing her hearing testimony, the ALJ determined 

that plaintiff's medically determinable impairments could 

reasonably be expected to produce some degree of symptoms, but her 

statements regarding the extent of these symptoms were not fully 

credible due to her inconsistent statements, activities of daily 

living, and history of improvement with treatment. Tr. 25. 

Notably, the ALJ found that plaintiff was inconsistent in her 

reports of why she stopped working. Tr. 23-24. Discrepancies in the 

testimony of a claimant can serve as clear and convincing reasons 

for discrediting that testimony. Burch, 400 F.3d at 676, 680. The 

ALJ may also draw an adverse credibility inference where the 

claimant stops working for reasons unrelated to his or her alleged 

disability. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). 

Substantial evidence supports the ALJ's conclusion in the case at 

bar. During a July 2010 comprehensive mental health assessment by 

the Native American Rehabilitation Association, plaintiff reported 

that before she went to prison, she had been "doing well & had a 

job." Tr. 2 5, 650. When she initially applied for benefits, 

plaintiff informed the Social Security Administration that she 

stopped working "because of other reasons" and because she "moved 

out of the state." Tr. 18 7. By contrast, at the ALJ hearing, 

plaintiff remarked she stopped working because she was disabled and 

Page 8 - OPINION AND ORDER 

Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 8 of 17
that she had been fired from every job she ever had. Tr. 52-53. In 

sum, plaintiff's statements that she was ~doing well" before prison 

and was no longer working in 2005 because of a cross-country move, 

contradict her hearing testimony that her impairments became 

disabling in 1984. Tr. 187. As the ALJ reasonably concluded, these 

conflicting statements undermine plaintiff's credibility. 1 

Furthermore, the ALJ found that the severity of plaintiff's 

alleged symptoms was not supported by the objective mental health 

evidence. The treatment a claimant uses to alleviate symptoms is 

~an important indicator of the intensity and persistence of [a 

claimant's] symptoms." 20 C.F.R. § 416.929(c) (3). Not seeking ~an 

aggressive treatment program" permits the inference that the 

claimant's symptoms were not as ~all-disabling" as reported. 

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Although 

an ALJ may not rely solely on a lack of medical evidence to 

discredit a claimant, it is one factor that may be considered, 

among others. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 

2001)(citing 20 C.F.R. § 404.1529(c)(2)). The ALJ observed that, 

despite reporting severe health symptoms, the records from 

1 Although not cited by the ALJ, the court notes that 

plaintiff's testimony concerning the length of her past 

employment is also inconsistent. In her brief, plaintiff argues 

that her work history reports prove that she has never held a job 

for more than four months. Pl.'s Opening Br. 22. Yet, at the ALJ 

hearing, plaintiff stated that she never worked more than a 

month. Tr. 52. Later at the ALJ hearing, she testified, ~I've 

only held a job eight months." Tr. 55. 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 9 of 17
plaintiff's primary physician consistently revealed no psychiatric 

symptoms and stability with treatment. See, e.g., Tr. 682 ("Effexor 

has worked well for her"), 683 (" [n] o depression or anxiety"), 

(712-713) ("[n]o depression or anxiety ... stable on meds. continue 

current dosing"), 737 ("[s]he has a normal mood and affect [and] 

[h]er behavior is normal"). Louis Drakos, M.D., noted no evidence 

of any psychomotor retardation and that plaintiff's behavior "was 

generally appropriate and cooperative with adequate impulse 

control." Tr. 639. Further, the record reflects that plaintiff has 

denied hallucinations or delusions multiple times and, during a 

comprehensive pyschodiagnostic evaluation, Dr. Wicher observed that 

plaintiff did not appear to be responding to any internal stiumli. 

Tr. 701. 

Lastly, plaintiff has not sought regular mental health 

treatment. A claimant may be discredited "if the medical reports or 

records show that [she] is not following the treatment as 

prescribed and there are no good reasons for this failure." SSR 

96-7P, available at 1996 WL 374186. In December 2010, Dr. Wicher 

opined that plaintiff would likely "be more successful at 

sustaining employment in the future" if she underwent therapy and 

consistent medication management. Tr. 7 02. At the ALJ hearing, 

however, plaintiff testified that she had not obtained any 

counseling since being released from prison in 2009 because 

"counseling is just a gossip table to me." Tr. 62-63. While 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 10 of 17
improved functioning or stability with treatment does not 

necessarily translate to the ability to maintain gainful 

employment, it was proper for the ALJ to consider those factors in 

evaluating plaintiff's credibility. Burch, 400 F.3d at 680. 

Thus, the ALJ's credibility finding was reasonable and 

supported by substantial evidence in the record. The ALJ's 

credibility assessment is affirmed. 

II. Rejection of the Lay Opinion 

Plaintiff next contends the ALJ failed to properly assess the 

lay testimony of her mother, Ms. Skinner. Lay witness observations 

regarding a claimant's symptoms or functional limitations must be 

considered by the ALJ. Molina v. Astrue, 674 F.3d 1114 (9th Cir. 

2012). The ALJ must provide reasons germane to each witness in 

order to reject such testimony. Lewis v. Apfel, 236 F.3d 503, 511 

(9th Cir. 2001). 

In a third party function report, Ms. Skinner opined that 

plaintiff has "perception issues which makes her feel persecuted 

and resentful." Tr. 212. Under a section where third parties 

provide information about the plaintiff's abilities, Ms. Skinner 

wrote that plaintiff has told her that "it is always someone else's 

fault" whenever she is terminated from employment. Tr. 217. Ms. 

Skinner concluded that plaintiff "lacks the mental maturity 

necessary to make it on her own," and in regards to their 

relationship, she hopes to be around "a long time to be of 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 11 of 17
assistance" to plaintiff. Tr. 219. 

The ALJ found that Ms. Skinner's testimony was contradicted by 

medical evidence, specifically the evidence reflecting that 

plaintiff was able to work before prison. Tr. 2 4. Inconsistency 

with the medical evidence is a germane reason to reject third-party 

statements. Apfel, 236 F.3d at 503, 511. Additionally, the ALJ 

found that Ms. Skinner's opinion was conclusory, lacked expertise 

relating to plaintiff's impairments, and was potentially 

sympathetic or biased due to their personal relationship. Id. 

Even assuming, however, that the ALJ erred in this regard, 

such error was harmless. See Molina, 674 F.3d at 1114-1122 ("an 

ALJ's failure to comment upon lay witness testimony is harmless 

where the same evidence that the ALJ referred to in discrediting 

the claimant's claims also discredits the lay witnesses's 

claims") (citation and internal quotations omitted). Ms. Skinner's 

testimony regarding the extent of plaintiff's functional 

limitations were not substantially different, and certainly not 

greater, than plaintiff's allegations. Compare Tr. 4 6-66 

(plaintiff's hearing testimony) with Tr. 212-219 (Ms. Skinner's 

written testimony). As discussed above, the ALJ provided clear and 

convincing reasons to reject the plaintiff's credibility, and these 

reasons are equally applicable to Ms. Skinner's testimony. The 

ALJ's decision is affirmed as to this issue. 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 12 of 17
III. Medical Opinion Evidence 

Plaintiff asserts that the ALJ failed to provide a legally 

sufficient reason, supported by substantial evidence, to reject the 

opinion of Dr. Wicher regarding plaintiff's activities of dally 

living and social limitations. Pl.'s Br. 25. There are three types 

of acceptable medical opinions in Social Security cases: those from 

treating, examining, and non-examining doctors. Lester v. Chater, 

81 F.3d 821, 830 (9th Cir. 1995). In resolving ambiguities in the 

medical record, an ALJ may reject the uncontradicted opinion of a 

treating doctor by providing clear and convincing reasons, 

supported by substantial evidence; the contradicted opinion of a 

treating doctor may be rejected by providing specific and 

legitimate reasons that are supported by substantial evidence. Orn 

v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 2007). When evaluating 

medical opinions, an ALJ is not required to accept an opinion that 

is brief, conclusory, and inadequately supported by objective 

findings. Bayliss v. Barnhart, 427 F. 3d 1211, 1216 (9th Cir. 2005). 

In December 2010, Dr. Wicher completed a comprehensive 

pyschodiagnostic evaluation of plaintiff. Tr. 697-702. Based on a 

clinical interview, Dr. Wicher diagnosed plaintiff with antisocial 

personality disorder and borderline personality disorder, and 

observed symptoms which may support a diagnosis of panic disorder. 

Tr. 7 01. Dr. Wicher reported that plaintiff appeared to have 

moderate deficits in social functioning, "based on her difficulty 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 13 of 17
controlling anger, history of aggression toward others, and current 

social insolation." Tr. 702. Dr. Wicher noted that plaintiff's 

affect, "which was fairly bright," was also "inconsistent with her 

description of her activities of daily living and other symptoms of 

depression." Id. Additionally, Dr. Wicher reasoned that plaintiff's 

description of mood swings and difficulty controlling her anger 

were symptoms better accounted for by her underlying personality 

structure, characterized by antisocial personality disorder and 

borderline personality disorder. Id. Although plaintiff's selfreports raised the question of whether she may suffer from major 

depressive disorder, Dr. Wicher ultimately concluded that plaintiff 

did not report sufficient symptoms during the evaluation to support 

that diagnosis. Id. Dr. Wicher found that, despite being diagnosed 

with bipolar disorder since the age of eight, plaintiff's records 

did not clearly "report a history which is conclusive for [bipolar 

disorder]." Id. 

According to Dr. Wicher, plaintiff's deficit in concentration, 

persistence, and pace was moderate, although her pace was not 

obviously impaired and her persistence "appeared to be limited by 

a tendency to give up quickly." Id. With regard to plaintiff's 

mental evaluation, Dr. Wicher noted that, because of the 

inconsistent mental status test results, determining whether 

plaintiff put forth satisfactory effort was difficult. Tr. 700-702. 

Finally, Dr. Wicher reported that plaintiff's self-described 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 14 of 17
moderate deficits in social functioning were the primary 

psychological barriers to her returning to full-time, sustained 

employment. Tr. 702. 

The ALJ gave some weight to Dr. Wicher's testimony. Tr. 26. 

Specifically, the ALJ found that Dr. Wicher' s opinion did not 

suggest plaintiff would be incapable of performing the determined 

residual functional capacity. To the extent that the ALJ rejected 

Dr. Wicher's opinion, she did so because Dr. Wicher had concerns 

about plaintiff's effort during the exam and because Dr. Wicher 

noted that plaintiff's affect was inconsistent with her own 

descriptions of daily living. Tr. 26, 702. An ALJ may afford less 

weight to a treating physician's opinion that is inconsistent with 

the claimant's activities of daily living or based on the 

claimant's uncredible subjective symptom statements. Rollins, 261 

F.3d at 853, 856; Tommasetti, 533 F.3d at 1035, 1041. 

Dr. Wicher clearly noted her assessment of plaintiff's ability 

to perform activities of daily living was premised on plaintiff's 

uncredible sel£-~eports. Although Dr. Wicher noted that plaintiff's 

description of daily living was inconsistent with her affect during 

the exam, Dr. Wicher nevertheless based that portion of her opinion 

on plaintiff's subjective complaints. Tr. 700-702. In sum, because 

Dr. Wicher' s opinion was inconsistent with other evidence of 

record, including portions of her own assessment, the ALJ provided 

specific and legitimate reasons, supported by substantial evidence, 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 15 of 17
for affording less weight to Dr. Wicher's opinion. 

Additionally, the ALJ reasonably resolved that restricting 

plaintiff to simple work with occasional contact with supervisors, 

no contact with the general public, and only superficial contact 

with co-workers was sufficient to account for Dr. Wicher 1 s opinion 

regarding plaintiff's moderate deficits in social functioning. This 

is particularly true due to the fact that "unskilled jobs 

ordinarily involve dealing primarily with objects." SSR 85-15, 

available at 1985 WL 56857. The ALJ correctly concluded that "the 

objective medical evidence does not provide a basis for finding 

limitations greater than those determined." TR. 2 6. The ALJ 1 s 

assessment of the medical opinion evidence is affirmed. 

IV. Residual Functional Capacity Determination 

Plaintiff asserts that the ALJ erred in formulating her RFC, 

and, by extension, at step five, failing to account for all of the 

limitations identified in her testimony, the lay witness testimony, 

and Dr. Wicher' s report. As discussed above, the ALJ properly 

evaluated this evidence. Further, outside of plaintiff's self 

reports, there is no indication that she suffers from anger 

outbursts that would interfere with her ability to work, especially 

in light of the fact that the ALJ limited her to occupations 

involving no public contact and limited coworker contact. 

Accordingly, plaintiff 1 s argument, which is contingent upon a 

finding of harmful error in regard to the issues above, is without 

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Case 3:14-cv-01309-AA Document 16 Filed 06/17/15 Page 16 of 17
merit. Bayliss, 427 F.3d 1211 at 1217-18. Further, the Court notes 

that unskilled jobs, like those identified by the VE in response to 

the dispositive hypothetical given by the ALJ, primarily involve 

[working] with objects rather than people. Weber v. Astrue, 2012 WL 

566564, *3 (D.Or. Feb. 21, 2012) (citations omitted). The ALJ's RFC 

and step five finding are affirmed. 

CONCLUSION 

For the reasons set forth above, the decision of the 

Commissioner is AFFIRMED. This action is DISMISSED. 

IT IS SO ORDERED. 

DATED this 4 day of June 2015. 

Ann Aiken 

United States District Judge 

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