IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BARBARA G. NOAH, 6:15-CV-01803-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, Acting 

Commissioner, Social Security 

Administration,

Defendant.

TIM WILBORN

Wilborn Law Office, P.C.

P.O. Box 370578 

Las Vegas, NV 89137

(702) 240-0184

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

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Case 6:15-cv-01803-BR Document 16 Filed 09/13/16 Page 1 of 18
DAVID MORADO

Regional Chief Counsel

THOMAS M. ELSBERRY 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-2531

Attorneys for Defendant

BROWN, Judge.

Plaintiff Barbara G. Noah seeks judicial review of a final

decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff's applications

for Disability Insurance Benefits (DIB) under Title II of the

Social Security Act and Supplemental Security Income (SSI) under

Title XVI of the Social Security Act. This Court has

jurisdiction to review the Commissioner's final decision pursuant

to 42 U.S.C. § 405(g). 

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff protectively filed her applications for SSI and

DIB on February 29, 2012, and alleged a disability onset date of 

April 1, 2010. Tr. 203-11, 212-13.1 The applications were

1

 Citations to the official transcript of record filed by

the Commissioner on January 27, 2016, are referred to as "Tr."

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denied initially and on reconsideration. An Administrative Law

Judge (ALJ) held a hearing on November 14, 2013. Tr. 53-86. At

the hearing Plaintiff was represented by attorney David Tilton. 

Tr. 53. The ALJ heard testimony from Plaintiff and vocational

expert (VE) Kay Wise. Id.

The ALJ issued a decision on April 17, 2014, in which she

found Plaintiff is not disabled and, therefore, is not entitled

to benefits. Tr. 28-38. Pursuant to 20 C.F.R. § 404.984(d),

that decision became the final decision of the Commissioner when

the Appeals Council denied Plaintiff's request for review. See

Tr. 1-4. Sims v. Apfel, 530 U.S. 103, 106-07 (2000). Plaintiff

appealed the decision of the Commissioner to this Court. 

BACKGROUND

Plaintiff was born in April, 1970. Tr. 203. She was 44

years old at the time of the hearing. Tr. 203. Plaintiff speaks

English and dropped out of school in the eleventh grade. Tr. 58. 

Plaintiff has past relevant work experience as a tree-service

groundsman, dryer tender, bartender, production worker, and

receptionist. Tr. 36, 276.

Plaintiff alleges disability due to degenerative disc

disease of the lumbar and cervical spine, fibromyalgia, and a

history of collagenous colitis. Tr. 275.

Except when noted, Plaintiff does not challenge the ALJ’s

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summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

medical evidence. See Tr. 31-36.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden, a claimant must demonstrate her

inability “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which . . . has lasted or can be expected to last for

a continuous period of not less than 12 months.” 42 U.S.C. 

§ 423(d)(1)(A). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)). 

The district 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 as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

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(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). It is more than a mere scintilla [of evidence]

but less than a preponderance. Id. (citing Valentine, 574 F.3d

at 690). 

The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006). 

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). See

also Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.

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2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also Keyser, 648 F.3d

at 724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R. 

§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). See also Keyser, 648

F.3d at 724. The criteria for the listed impairments, known as

Listings, are enumerated in 20 C.F.R. part 404, subpart P,

appendix 1 (Listed Impairments). 

If the Commissioner proceeds beyond Step Three, she must

assess the claimant’s residual functional capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite her limitations. 20 C.F.R.

§§ 404.1520(e), 416.920(e). See also Social Security Ruling

(SSR) 96-8p. “A ‘regular and continuing basis’ means 8 hours a

day, for 5 days a week, or an equivalent schedule.” SSR 96-8p,

at *1. In other words, the Social Security Act does not require

complete incapacity to be disabled. Taylor v. Comm’r of Soc.

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Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work she has done in the past. 20 C.F.R. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). See also Keyser, 648 F.3d at 724-25. Here the

burden shifts to the Commissioner to show a significant number of

jobs exist in the national economy that the claimant can perform. 

Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th

Cir. 2010). The Commissioner may satisfy this burden through the

testimony of a VE or by reference to the Medical-Vocational

Guidelines set forth in the regulations at 20 C.F.R. part 404,

subpart P, appendix 2. If the Commissioner meets this burden,

the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1),

416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged 

in substantial gainful activity since her alleged onset date of

April 1, 2010. Tr. 30.

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At Step Two the ALJ found Plaintiff has the severe

impairments of degenerative disc disease of the cervical and

lumbar spine, fibromyalgia, a history of collagenous colitis,

anxiety, hypertension, hypothyroidism, hyperlipidemia, asthma,

somatoform disorder, and cannabis dependence. Tr. 31.

At Step Three the ALJ concluded Plaintiff's impairments

medically equal the criteria for Listed Impairments under 

§§ 1.04, 3.03, and 5.06, 20 C.F.R. part 404, subpart P, appendix

1. Tr. 31. The ALJ found Plaintiff has the RFC to perform light

work with the following limitations: She can perform tasks that

involve no more than four hours of sitting and no more than four

hours of standing/walking in an eight-hour workday with normal

breaks; she must be allowed to change positions as necessary to

mitigate discomfort while remaining on task; she must avoid tasks

requiring ambulation over uneven surfaces; she can occasionally

climb stairs and ramps, but she must avoid climbing ladders,

ropes, or scaffolds; she can occasionally stoop, kneel, crouch,

and crawl; she must avoid exposure to workplace hazards such as

unprotected heights and dangerous machinery; she can understand,

remember, and carry out no more than simple instructions that can

be learned within 30 days; she must avoid exposure to dust,

fumes, gases, or other respiratory irritants in concentrations

greater than those ordinarily found in a normal office

environment; she can engage in occasional overhead reaching

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bilaterally, but she must avoid sustained overhead work; and she

can tolerate no more than occasional contact with co-workers,

supervisors, or the public. Tr. 33.

At Step Four the ALJ concluded Plaintiff was not capable of

performing any of her past relevant work. Tr. 36. 

At Step Five the ALJ found Plaintiff has the RFC to work in

jobs that exist in the national economy, including office helper,

paper-goods inserter, and stock checker. Tr. 37. The ALJ,

therefore, concluded Plaintiff is not disabled. Tr. 38.

DISCUSSION

Plaintiff contends the ALJ erred when she (1) failed to find

at Step Three that Plaintiff's impairments met or equalled

Listing 12.07, (2) rejected Plaintiff’s subjective symptom

testimony, and (3) rejected the lay-witness testimony.

I. The ALJ did not err when she found Plaintiff's impairments

did not meet or equal Listing 12.07.

Plaintiff contends the ALJ erred at Step Three because she

failed to find that Plaintiff meets Listing 12.07 for Somatoform

Disorders. At Step Three of the sequential evaluation the ALJ

considers whether a claimant’s impairment or combination of

impairments meets or equals a Listing that presumptively

demonstrates disability. 20 C.F.R. §§ 404.1520(d), 416.920(d). 

For every major body system the Listings describe impairments

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that are severe enough to be per se disabling. Tackett v. Apfel,

180 F.3d 1094, 1099 (9th Cir. 1999). Listing 12.07 requires a

claimant to establish the following:

Somatoform disorders: Physical symptoms for which there

are no demonstrable organic findings or known 

physiological mechanisms. The required level of 

severity for these disorders is met when the 

requirements in both A and B are satisfied.

A. Medically documented by evidence of one of the 

following:

1. A history of multiple physical symptoms of several 

 years duration, beginning before age 30, that have 

caused the individual to take medicine frequently, see 

a physician often an altered life patterns 

 significantly; or

2. Persistent non-organic disturbance of one of the 

 following:

a. Vision; or

b. Speech; or

c. Hearing; or

d. Use of a limb; or

e. Movement and its control (e.g., coordination 

 disturbance, psychogenic seizures, akinesia, 

 diskineasia; or

f. Sensation (e.g., diminished or heightened).

3. Unrealistic interpretation of physical signs or 

 sensations associated with the preoccupation or belief 

that one has a serious disease or injury;

AND

B. Resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social 

functioning; or

3. Marked difficulties in maintaining concentration, 

 persistence, or pace; or

4. Repeated episodes of decompensation, each of 

 extended duration.

20 C.F.R., Part 404, Subpart P, App'x 1, § 12.07. 

The ALJ is not required to explore the issue of equivalency

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to a Listing unless the claimant affirmatively asserts

equivalency. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir.

2005). Here the ALJ discussed Listing 12.07 and found Plaintiff

does not meet the criteria to establish that she is per se

disabled under that Listing. Tr. 31. 

Moreover, at the hearing Plaintiff did not present a theory

of equivalency in an effort to establish equivalency with Listing

12.07. Tr. 55-86. 

Plaintiff contends she meets Listing 12.07 and cites medical

evidence provided by Douglas Crane, M.D.; Gail Wahl, Ph.D.; and

Donald Yang, M.D., to support her position. Tr. 525, 896, 963. 

Plaintiff, however, has not alleged specific error in the ALJ’s

evaluation of the medical evidence and, therefore, has waived any

such argument. In addition, Plaintiff did not present any

evidence that specific symptoms required to meet the Listing

began before age 30 (which was in 2000) and, therefore, has not

satisfied Listing 12.07A(1). Tr. 36. Similarly, Plaintiff has

not presented evidence of persistent nonorganic disturbance of

any of the six categories listed under Listing 12.07A(2). 

Finally, Plaintiff does not satisfy any of the Listing 12.07A(3)

categories because she did not allege she has an "unrealistic

interpretation of physical signs or sensations associated with

the preoccupation or belief that she has a serious disease or

injury." Thus, Plaintiff has not met her burden to prove that

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her impairments meet or equal Listing 12.07, and, therefore, the

Court concludes the ALJ did not err when she found Plaintiff did

not meet or equal any of the “A criteria” for Listing 12.07.

 Even if Plaintiff were correct that the evidence

establishes she meets or equals one of the “A criteria” for

Listing 12.07, she has failed to satisfy the “B criteria.” The

ALJ reasonably found Plaintiff did not have marked restrictions

in at least two areas and had not experienced episodes of

decompensation of extended duration. Tr. 31-33. Plaintiff

maintains the medical evidence establishes her impairments result

in at least two “marked” limitations that satisfy the B criteria,

including a marked limitation in maintaining concentration,

persistence, and pace and in performing activities of daily

living. Plaintiff, however, merely presents an alternative

interpretation of the evidence without legal support. Because

the ALJ’s assessment of the medical evidence was reasonable, her

Step Three findings must be upheld. Ludwig, 681 F.3d at 1051

(even when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record). 

In summary, the ALJ properly considered the relevant

listings at Step Three in light of the credible medical evidence

in the record, and the ALJ's findings were free of legal error.

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II. The ALJ provided clear and convincing reasons for rejecting

Plaintiff’s testimony.

Plaintiff contends the ALJ erred when she failed to give

clear and convincing reasons for rejecting Plaintiff's testimony. 

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment

or combination of impairments could reasonably be expected to

produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th

Cir. 1986). The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity. 

Smolen, 80 F.3d at 1284.

If the claimant satisfies the above test and there is not

any affirmative evidence of malingering, the ALJ can only reject

the claimant’s pain testimony if the ALJ provides clear and

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th

Cir. 1995)). General assertions that the claimant’s testimony is

not credible are insufficient. Id. The ALJ must identify “what

testimony is not credible and what evidence undermines the

claimant's complaints.” Id. (quoting Lester, 81 F.3d at 834).

At the hearing Plaintiff testified she was unable to sit or

stand for longer than between 20 minutes and an hour at a time,

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and she stated she often suffers vomiting and diarrhea. Tr. 64.

 Plaintiff testified she experiences joint pain and constant

nausea, which interfere with her concentration. Tr. 64. She

stated she is able to perform some basic household chores and to

provide emotional support to her 17-year-old son, who suffers

from mental illnesses. Tr. 66-67. She suffers from symptoms of

porphyria, including abdominal pain, but IV infusions have helped

manage her symptoms. Tr. 68. Plaintiff estimated she could walk

half a block and lift about 10 pounds, but she loses her grip if

she tries to use her hands for long periods. Tr. 71-72. She

estimated she vomits about five times on an average day. Tr. 77.

The ALJ rejected Plaintiff’s testimony as to the nature and

extent of her limitations. Tr. 34. The ALJ found Plaintiff’s

testimony was contradicted by her activities of daily living and

that her complaints were not substantiated by the objective

medical evidence. Tr. 36. 

The ALJ may discount a claimant’s subjective symptom

allegations when they are undermined by activities such as

attending to the needs of children. Rollins v. Massanari, 261

F.3d 853, 857 (9th Cir. 2001). Here the ALJ noted Plaintiff was

a single mother of a child diagnosed with significant mentalhealth problems, including bipolar disorder and schizophrenia. 

Tr. 36. At the hearing Plaintiff testified she “spends all her

time caring for [her son]” because she does not feel comfortable

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leaving her son alone at home. Tr. 36, 67. Based on the level

of care required by her teenage son, the Court finds it was

reasonable for the ALJ to infer that Plaintiff was less limited

by her symptoms than she alleged. Rollins, 261 F.3d at 857.

Lack of substantiating medical evidence may also provide

weight to an ALJ’s credibility determination of a Plaintiff's

testimony when other legally sufficient reasons are present, such

as the ALJ's finding that the claimant’s activities of daily

living conflict with Plaintiff's alleged symptoms. StubbsDanielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008). Here,

despite her complaints of gastrointestinal distress, Plaintiff

presented “[n]o acute distress” on examination. Tr. 35, 976. 

There also was not any evidence of dental problems indicative of

acid erosion from chronic vomiting, and radiological and

laboratory evidence did not identify any significant

gastrointestinal abnormalities. Tr. 35, 906-18. In addition,

medical imaging studies obtained in June of 2012 documented only

“minor” nerve impingement at L5-S1 that was “not significant

enough” to warrant surgical intervention. Tr. 35, 537. 

Radiological evidence also failed to show signs of progressive

lumbar degeneration. Tr. 35, 537. An imaging study performed in

July 2013 revealed only “mild” loss of disc space height at 

L5-S1, but “the remainder of the lumbosacral spine has relatively

good preservation of disc space height,” which indicates a more

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mild condition than Plaintiff alleged. Tr. 35, 880. 

On this record the Court concludes the ALJ reasonably found

Plaintiff’s allegations were unsupported by the medical evidence,

and this added further support to the ALJ's rejection of

Plaintiff’s testimony. Stubbs-Danielson, 539 F.3d at 1175.

Plaintiff, nevertheless, challenges the ALJ’s conclusion

regarding her testimony and presents an alternative

interpretation of the evidence. For example, Plaintiff contends

she could miss up to four days of work per month due to her IV

infusions, but she also testified at the hearing that she stopped

getting infusions because she was feeling better and because her

veins were “blowing.” Tr. 65-66, 69. In any event, Plaintiff’s

interpretation of the record is not significant because the ALJ’s

conclusions were rational and, therefore, must be upheld. See

Ludwig, 681 F.3d at 1051 (when the evidence is susceptible to

more than one rational interpretation, the Commissioner’s

findings must be upheld when reasonable). 

On this record the Court concludes the ALJ provided clear

and convincing reasons supported by substantial evidence in the

record for finding Plaintiff's testimony was not entirely

credible as to the intensity, persistence, and limiting effects

of her conditions. The Court, therefore, concludes the ALJ did

not err when she rejected Plaintiff’s testimony.

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III. The ALJ did not err when she rejected the lay-witness

testimony.

Plaintiff contends the ALJ erred when she rejected the laywitness testimony of Michelle Dieke, Plaintiff’s friend.

 The ALJ must provide “germane reasons” for rejecting the

testimony of lay witnesses, but need not “clearly link [her]

determination to those reasons.” Lewis v. Apfel, 236 F.3d 503,

511-12 (9th Cir. 2001). See also Molina, 674 F.3d at 1114. 

Dieke completed a questionnaire describing Plaintiff’s

limitations. Tr. 284-91. She opined Plaintiff cannot sit,

stand, or walk for long periods of time or do any multitasking

without needing breaks to lie down. Tr. 284. She stated

Plaintiff needs reminders to take medications, has low energy,

can only drive for short distances, and often wakes up because of

her pain. Tr. 285-87. Dieke also confirmed Plaintiff's

allegations that she was limited in lifting, squatting, bending,

standing, reaching, walking, sitting, kneeling, talking, hearing,

climbing stairs, seeing, completing tasks, concentrating,

understanding, following instructions, and using her hands. 

Dieke also stated Plaintiff has difficulty handling stress, and

her cognitive function and reaction time are adversely affected

by her medications. Tr. 290. 

The ALJ rejected Dieke’s testimony because it closely

mirrored Plaintiff’s statements, which the ALJ properly rejected. 

When the ALJ properly rejects a claimant’s statements, those same

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reasons apply with equal force to the similar statements of a lay

witness. The ALJ, therefore, provided germane reasons for

rejecting the lay-witness testimony. See Lewis, 236 F.3d at 511-

12.

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the 

Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 13th day of September, 2016. 

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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