IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

SHANEN L. DAHLENBURG, 

SHANEN L. BROWN 

Plaintiff, 

V. 

CAROLYN W. COLVIN, 

Acting Commissioner of Social 

Security, 

Defendant. 

MARK D. CLARKE, Magistrate Judge: 

Case No. 6:15-CL-01003-CL 

OPINION AND ORDER 

Plaintiff SHANEN L. DAHLENBURG ("Plaintiff') seeks judicial review of the 

Commissioner's decision denying her application for disability insurance benefits (DIB) and 

supplemental security income (SSI) under Titles II and XVI of the Social Security Act. This 

Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383( c )(3). All parties have consented to 

allow a Magistrate Judge to enter final orders and judgments in this case in accordance with Fed. 

R. Civ. P. 73 and 28 U.S.C. § 636(c). Because the Commissioner's decision is based on proper 

1 - OPINION AND ORDER 

Case 6:15-cv-01003-CL Document 20 Filed 08/12/16 Page 1 of 14
legal standards and supported by substantial evidence, the Commissioner's decision is 

AFFIRMED and this matter is dismissed. 

BACKGROUND 

Plaintiff was born in April, 1972. Tr. 150. She completed eighth grade and attended 

special education classes throughout her schooling. Tr. 37. Plaintiff has worked as a medical 

transport driver. Id. 

Plaintiff protectively filed an application for DIB and SSI on September 26, 2011, 

alleging disability beginning August 19, 2009, due to "bi-polar, learning disabilities, asthma, 

arthritis." Tr. 57. The Commissioner denied her application initially and upon reconsideration. 

Tr. 81-97. At Plaintiffs request, a hearing was held before an Administrative Law Judge ("ALJ") 

on September 18, 2013. Tr. 30-56. On November 7, 2013, the ALJ found Plaintiff not disabled. 

Tr. 11-25. The Appeals Council denied Plaintiffs request for review, making the ALJ's decision 

the final decision of the Commissioner. Tr. 1-4. Plaintiff now seeks judicial review of that 

decision. 

DISABILITY 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)(l )(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, 648 F.3d 721, 724 (9th Cir. 2011). Each 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: 

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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. 20 C.F.R. §§ 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 See also Bustamante v. Massanari, 262 F.3d 949, 954 

(9th Cir. 2001). 

3 - OPINION AND ORDER 

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

Commissioner bears the burden of proof at step five. Id. at 953-54. 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." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 

1999); 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. 

THE ALJ'S FINDINGS 

The ALJ applied the sequential process. At step one, the ALJ found Plaintiff has not 

engaged in substantial gainful activity since the alleged onset date. Tr. 16. At step two, the ALJ 

found Plaintiff had the following severe impairments: right knee degenerative joint disease; 

panic disorder with agoraphobia; social phobia; posttraumatic stress disorder, in remission; 

bipolar disorder; dysthymia; somatization disorder; delusional disorder; attention 

deficit/hyperactivity disorder (ADHD); and major depressive disorder. Id. At step three, the ALJ 

found that Plaintiff did not have an impairment or combination of impairments that met or 

equaled one of the specific impairments listed in the regulations. Tr. 18. 

The ALJ determined that Plaintiff had the RFC to perform light work with lifting and 

carrying 20 pounds occasionally and 10 pounds frequently, standing and walking about six hours 

of an eight-hour workday, and sitting about six hours of an eight-hour workday. Tr. 20. Further, 

Plaintiff should be allowed to alternate sitting or standing positions as needed throughout the day 

4 - OPINION AND ORDER 

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while remaining on task. She can occasionally climb ramps, stairs, ladders, ropes, or scaffolds. 

Id. Plaintiff can frequently balance and stoop, but should only occasionally kneel, crouch and 

crawl. Id. She should avoid concentrated exposure to hazardous machinery and irritants such as 

fumes, odors, dust, gases, and poorly ventilated areas. Id. Plaintiff is limited to occupations that 

do not require complex written or verbal communication. Id. Instructions should primarily be 

demonstrated. Id. She can understand and carry out simple instructions and can have occasional, 

brief, superficial contact with the public or coworkers. Id. In reaching her conclusion, the ALJ 

considered Plaintiffs testimony, but found her not fully credible. Tr. 21. 

At step four, the ALJ found Plaintiff is unable to perform past relevant work. Tr. 23. 

Considering Plaintiffs age, education, experience, and RFC, the ALJ determined Plaintiff was 

capable of performing jobs that exist in significant ·numbers in the national economy, including 

order filer, mail clerk, and information router. Tr. 25. Therefore, the ALJ concluded Plaintiff had 

not been disabled, as defined by the Social Security Act, since August 19, 2009. Id. 

STANDARD OF REVIEW 

The reviewing court shall affirm the Commissioner's decision if the decision is based on 

proper legal standards and the legal findings are supported by substantial evidence in the record. 

42 U.S.C. § 405(g); Batson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir. 2004). 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). In reviewing the Commissioner's alleged 

errors, this court must weigh "both the evidence that supports and detracts from the 

[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 

5 - OPINION AND ORDER 

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Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is 

rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

When the evidence before the ALJ is subject to more than one rational interpretation, we 

must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shala/a, 53 

F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, "cannot affirm the 

Commissioner's decision on a ground that the Administration did not invoke in making its 

decision." Stout v. Comm 'r, 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a 

court may not reverse an ALJ's decision on account of an error that is harmless. Id at 1055-56. 

"[T]he burden of showing that an error is harmful normally falls upon the party attacking the 

agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 

DISCUSSION 

Plaintiff argues the ALJ erred by: (1) failing to give proper weight to Dr. Taubenfeld's 

assessment; (2) failing to include fibromyalgia as a severe impairment; and (3) failing to give 

clear and convincing reasons for rejecting Plaintiffs testimony. PL 's Br. 5. 

I. The ALJ Gave Proper Weight to Dr. Taubenfeld's Assessment 

Plaintiff argues the ALJ failed to give proper weight to Dr. Taubenfeld's assessment. The 

ALJ rejected Dr. Taubenfeld's assessment because of (1) Plaintiffs work in 2012; (2) Plaintiffs 

limited and pain-focused treatment record; and (3) Plaintiffs daily activities. Because Dr. 

Taubenfeld's assessment is inconsistent with State agency opinions, Tr. 329, 66-67, 95-96, the 

ALJ is required to provide specific, legitimate reasons supported by substantial evidence in the 

record before rejecting Dr. Taubenfeld's opinion. Widmark v. Barnhart, 454 F.3d 1063, 1066-67 

(9th Cir. 2006). An inconsistency with other evidence in the record is a valid reason to discount a 

6 - OPINION AND ORDER 

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medical opinion. 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3); Rollins v. Massanari, 261 F.3d 

853, 856-57 (9th Cir. 2001). The ALJ properly rejected Dr. Taubenfeld's opinion. 

a. 2012 Work 

Plaintiffs work at First Medical Transport LLC in early 2012 contradicts Dr. 

Taubenfeld's assessment. Dr. Taubenfeld opined Plaintiffs disability commenced on January 1, 

2012. Tr. 329. However, Plaintiff worked with no accommodations or work restrictions during 

the first quarter of 2012. Tr. 325-27. Further, Plaintiff did not stop working because of her 

impairment and the ALJ was not required to credit Plaintiffs report that she was going to quit. 1 

Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990). This inconsistency between Dr. 

Taubenfeld's assessment and the evidence of Plaintiffs 2012 work is a legitimate reason to 

discount Dr. Taubenfeld's opinion. 

b. Limited Record 

Dr. Taubenfeld's assessment of marked limitations in concentration and social 

functioning is not consistent with Plaintiffs limited treatment record where she was largely 

focused on pain. Plaintiff contends that her treatment record was limited due to lack of funds and 

anxiety. Plaintiff also argues that her primary focus was on pain because she was meeting with 

doctors who were not mental health specialists. The ALJ found that Plaintiffs treatment record 

as a whole showed a better picture of Plaintiffs mental health than the snapshot given by Dr. 

Taubenfeld's consultative examination. Tr. 23. The ALJ is required to consider the extent to 

which a medical opinion is consistent with the treatment record and is entitled to draw 

reasonable inferences from the evidence. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4); SSR 82-

62, 1982 WL 31386, at *4. 

1 Plaintiff testified she was unable to handle her job at First Medical Transport, but the day she went in to give 

notice, the company closed. Tr. 39. 

7 - OPINION AND ORDER 

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As for her limited treatment record being so limited, Plaintiff testified that "she only 

recently sought treatment because she could not make herself go into the building." Tr. 20, 42. 

The ALJ found that Plaintiffs failure to seek treatment was reasonably explained by Plaintiff 

having mild symptoms. The ALJ properly considered the information in the record and 

reasonably drew inferences from the evidence. 

Plaintiff also mentions in her brief that lack of funds played a role in her not seeking 

treatment. However, Plaintiff testified that she only recently sought mental health treatment 

because she was unable to go into the building. Tr. 42. No mention of financial hardship was 

ever made. Again, in light of the record, the ALJ reasonably concluded that Plaintiffs lack of 

treatment stemmed from mild symptoms more than a lack of funding. Separately, it is reasonable 

Plaintiff focused on pain while meeting with doctors who were not mental health specialists, but 

the mental health treatment record remains extremely limited and does not support Dr. 

Taubenfeld's findings. For example, Dr. Taubenfeld assessed marked limitations in six 

categories concerning Plaintiffs concentration and social functioning. When State agency 

examiners reviewed the entirety of Plaintiffs treatment record, they assessed only moderate or 

not significant limitations in the same six categories. 

Dr. Taubenfeld's primary support for his assessment is Plaintiffs Global Assessment of 

Functioning score. However, the ALJ found that these one-time assessments are largely 

reflective of a claimant's self-reporting rather than observations over time. The ALJ properly 

considered the extent to which Dr. Taubenfeld's opinion was consistent with the treatment record 

as a whole and gave specific and legitimate reasons for rejecting his opinion. 

c. Daily Activities 

8 - OPINION AND ORDER 

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Dr. Taubenfeld's assessment is also contradicted by evidence in the record. Plaintiff 

argues that the marked limitations in concentration and social functioning assessed by Dr. 

Taubenfeld were corroborated by Ms. Stater's third party function report and are uncontradicted 

by Plaintiffs daily activities. The ALJ found that Plaintiffs daily activities were inconsistent 

with both Ms. Stater's observations and Dr. Taubenfeld's assessment. The ALJ may discount a 

medical opinion if it is inconsistent with other evidence in the record. 20 C.F .R. § § 

404.1527(c)(3), 416.927(c)(3); Rollins, 261 F.3d at 856-57. 

Ms. Sater reported that there were days when Plaintiff wouldn't leave her room. 

However, the ALJ found that this may have been a product of a lack of structure because there is 

no evidence in the record that Plaintiff had trouble leaving her room on days that she needed to 

go to work at her 2012 job. Plaintiff also self-reported that every day she cooks for her daughter, 

does house and yard work, goes outside, and is social for at least six hours. This, along with 

Plaintiffs 2012 job, is inconsistent with Dr. Taubenfeld's assessment that Plaintiff was 

"markedly" limited in sustaining an ordinary routine without special supervision. 

Dr. Taubenfeld also assessed marked limitation in Plaintiffs ability to complete a normal 

workday without unreasonable rest periods. However, Plaintiff reported that her need to lie down 

could be spread out throughout the day and that she could be active for five hours at a time. This 

is adequate stamina to sustain work between normal breaks. Ms. Sater's report and Dr. 

Taubenfeld's assessment are inconsistent with Plaintiffs daily activities. Therefore, the ALJ was 

justified in discounting Dr. Taubenfeld's opinion. 

The ALJ provided specific and legitimate reasons for giving Dr. Taubenfeld's opinion 

little weight. Even so, the ALJ did not fully reject Dr. Taubenfeld's opinion. In addition to the 

occupational limitations proposed by the State, the ALJ added further limitations based on Dr. 

9 - OPINION AND ORDER 

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Taubenfeld's opinion. Tr. 23. There is no error in the weight the ALJ gave to Dr. Taubenfeld's 

opm1on. 

II. Fibromyalgia 

Plaintiff contends the ALJ erred by omitting fibromyalgia from the list of severe 

impairments. However, the ALJ found that the medical records did not adequately establish 

fibromyalgia as a medically determinable impairment. Tr. 17. 

Fibromyalgia is a disorder defined by the American College of Rheumatology (ACR) and 

is recognized as medically-determinable if there are signs that are clinically established by a 

medical record. Under Social Security Ruling 12-2p, there are two sets of criteria promulgated 

by the ACR that the ALJ may use to find a person has a medically determinable impairment of 

fibromyalgia. First, the 1990 ACR criteria requires (1) a history of widespread pain in all four 

quadrants of the body for a minimum duration of three months (2) accompanied by at least 11 of 

18 specific tender points, and (3) evidence that other disorders that could cause the symptoms or 

signs were excluded. Gibson v. Comm'r, No. 3:14-cv-01217-MA, 2015 U.S. Dist. LEXIS 

108487, at *20 (D. Or. Aug. 18, 2015) (same). Second, the 2010 ACR preliminary diagnosis 

criteria require (1) a history of widespread pain as previously described, (2) with six or more 

fibromyalgia symptoms, signs or co-occurring conditions, and (3) evidence that other disorders 

that could cause the symptoms have been excluded. The ACR also requires that the diagnosis 

and examination stem from one physician. See Hegar v. Colvin, No. 6:14-CV-00455-PK, 2015 

U.S. Dist. LEXIS 84686, at *19 (D. Or. June 1, 2015). 

It appears that on establishing care with Dr. Weisensee, Plaintiffs self-report of 

fibromyalgia was accepted. Plaintiffs medical records note a family history of fibromyalgia, but 

the records from 2010 do not reflect a diagnosis of fibromyalgia. Tr. 265. Plaintiff did not 

10 - OPINION AND ORDER 

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identify fibromyalgia as a condition limiting her ability to work in her initial disability report 

from October 2011. Tr. 178. As of the next report, made about eight months later, Plaintiff 

claimed that "fibromyalgia has worsened in the last few months." Tr. 219. On establishing care 

with Dr. Weisensee in March 2012, Plaintiff reported that she "carries a diagnosis of 

fibromyalgia currently not treated." Tr. 359-362. Dr. Weisensee continued to list fibromyalgia 

and states that Plaintiff had "Multiple tender spots consistent" with the condition, but Dr. 

Weisensee never formally diagnosed Plaintiff under the 1990 or 2010 ACR criteria. Tr. 379-401. 

Based on the 1990 ACR criteria, Plaintiff was not properly diagnosed because no 

physician identified at least 11 positive tender points on physical examination. Similarly, based 

on the 2010 ACR criteria, Plaintiff was not properly diagnosed because no single physician 

documented manifestations of at least six fibromyalgia signs, symptoms, or co-occurring 

conditions. The ALJ reasonably found that there is no work up of fibromyalgia in the record. 

Despite justifiably finding no fibromyalgia, the ALJ still considered all Plaintiffs alleged 

fibromyalgia symptoms when assessing her RFC. The ALJ considered depression, panic disorder 

with agoraphobia, and somatization disorder to be severe impairments. Tr. 16. The ALJ credited 

the opinions of Joshua J. Boyd, Psy.D., and Kordell N. Kennemer, Psy.D., who considered 

Plaintiffs memory problems and anxiety. Tr. 23, citing Tr. 62-63, 66-67, 90-91, 94-96. Finally, 

the ALJ considered Plaintiffs alleged fatigue, which Plaintiff specifically attributed to her 

fibromyalgia. Tr. 21, 47. Thus, even ifthe ALJ had erred, the error would have been harmless 

because the ALJ considered all of Plaintiffs alleged limitations and reasonably accommodated 

those that were credible. 

III. Plaintiff's Testimony 

11 - OPINION AND ORDER 

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Plaintiff argues that the ALJ failed to give clear and convincing reasons for rejecting 

Plaintiffs testimony that she needs to lie down for 45-minutes twice during a normal workday. 

The ALJ properly rejected Plaintiffs testimony because her subjective complaints were (1) 

inconsistent with her daily activities and (2) undermined by her work in 2012. Additionally, she 

failed to seek treatment until shortly before the hearing. 

The ALJ is responsible for determining credibility, resolving conflicts in medical 

testimony, and resolving ambiguities. Andrews, 53 F.3d at 1039. However, the ALJ's findings 

must be supported by specific, cogent reasons. Reddick v. Chafer, 157 F.3d 715, 722 (9th Cir. 

1998). Unless there is affirmative evidence showing that the claimant is malingering, the ALJ' s 

reason for rejecting the claimant's testimony must be "clear and convincing." Id. The ALJ must 

identify what testimony is not credible and what evidence undermines the claimant's complaints. 

Id. The evidence upon which the ALJ relies must be substantial. Reddick, 157 F.3d at 724. 

General findings (e.g., "record in general indicates improvement") are an insufficient basis to 

support an adverse credibility determination. Id. at 722. The ALJ must make a credibility 

determination with findings sufficiently specific to permit the court to conclude that the ALJ did 

not arbitrarily discredit the claimant's testimony. Thomas v. Barnhart, 278 F.3d 947, 958 (9th 

Cir. 2002). Examples of clear and convincing reasons for rejecting Plaintiffs testimony include 

inconsistencies between her testimony and her conduct; daily activities inconsistent with the 

alleged symptoms; inadequately explained failure to seek treatment; severity and effect of the 

symptoms complained of; and the ability to work after allegedly becoming disabled. Tommasetti 

v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th 

Cir. 2007); Light v. Soc. Sec. Admin., 119 F.3d 789,792 (9th Cir. 1997); Bray v. Comm 'r, 554 

F.3d 1219, 1227 (9th Cir. 2009); Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007). Further, 

12 - OPINION AND ORDER 

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Plaintiff should not be penalized for attempting to a lead normal life in the face of her 

limitations. Reddick, 157 F .3d at 722. 

a. Subjective Complaints 

The ALJ found that Plaintiffs subjective complaints were (1) inconsistent with her daily 

activities and (2) undermined by her work in 2012. These are valid considerations supported by 

substantial evidence. 

First, Plaintiffs ability to do some housework or spend time with her friend is not 

necessarily inconsistent with her claim of disability. However, Plaintiff reported that it is "hard 

for [her] to do anything," Tr. 21, 42, and that she can only spend six hours with others. The ALJ 

found these subjective complaints to be inconsistent with a variety of activities Plaintiff claims 

she does every day, including spending 6-8 hours with Ms. Sater while they help each other with 

household chores an.d engage in hobbies together. These activities are inconsistent with 

Plaintiffs testimony and the alleged severity of her symptoms. 

Second, Plaintiffs 2012 work undermines her subjective complaints because she worked 

after she allegedly became disabled, she failed to report it to the Agency, and she stopped 

working for reasons other than disability. Tr. 21. The ability to work after allegedly becoming 

disabled weighs against Plaintiffs credibility. 

b. Failure to Seek Treatment 

The ALJ found seeking mental health treatment only 27 days before the hearing "and 

after the hearing notice was issued is suspicious for an attempt to generate a medical record." Tr. 

22, 369. Plaintiff contends that her treatment record was limited due to lack of funds and anxiety 

preventing care. Plaintiff also argues that her primary focus was on pain because she was 

meeting with doctors who were not mental health specialists. The ALJ may consider 

13-0PINION AND ORDER 

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inadequately explained failure to seek treatment in weighing Plaintiffs credibility. Orn, 495 F.3d 

at 636. As previously discussed, the ALJ reasonably concluded that Plaintifrs lack of treatment 

stemmed from mild symptoms more than anxiety or a lack of funding. Plaintiff did not 

adequately explain why she failed to seek treatment until shortly before the hearing. The ALJ 

relied on substantial evidence and provided clear and convincing reasons for discounting 

Plaintiffs opinion. 

Despite the negative credibility finding, the ALJ accounted for Plaintiffs claim that she 

needs to lie down at intervals. Plaintiff reported that her need to lie down could be spread out 

throughout the day. Tr. 47. She also reported that she could be active for five hours at a time. Tr. 

22. An eight-hour workday consists of "a morning break, a lunch period, and an afternoon break 

at approximately 2-hour intervals." SSR 96-9p, 1996 WL 374185, at *6. Thus, the ALJ could 

reasonably conclude that Plaintiff had sufficient stamina to sustain work between normal breaks. 

The ALJ was not required to credit Plaintiffs testimony that she needs to lie down for 45 

minutes two times during a normal work day for the reasons previously provided. 

CONCLUSION 

Because the Commissioner's decision is based on proper legal standards and supported 

by substantial evidence, the Commissioner's final decision is AFFIRMED and this case is 

DISMISSED. 

IT IS SO ORDERED. 

~~ 

~~D.CLARKE United States Magistrate Judge 

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