IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MICHELLE MARIE JOHNSON, ) 

) 

Plaintiff, ) 

) 

v. ) 

) 

NANCY A. BERRYHILL, Acting Commissioner ) 

of Social Security, ) 

) 

Defendant. ) 

JONES, J., 

6: 15-CV-02284-JO 

OPINION AND ORDER 

Plaintiff Michelle Johnson appeals the Commissioner's decision denying her concurrent 

applications for disability insurance benefits and supplemental security income under Titles II and 

XVI of the Social Security Act. The court has jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the 

Commissioner's decision. 

PRIOR PROCEEDINGS 

Johnson alleged disability beginning July 1, 2009, due to blindness in one eye, epilepsy, 

Graves' disease, blood clot disorder, anemia, hypertension, and lupus. Admin. R. 103. She satisfied 

the insured status requirements under the Act through September 30, 2014, and must establish that 

she was disabled on or before that date to prevail on her Title II claim. Tidwell v. Apfel, 161 F .3d 

599, 601 (9th Cir. 1998). 

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The ALJ applied the sequential disability determination process described in the regulations 

and in Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The ALJ found that Johnson's ability to work 

was adversely affected by encephalomalacia with a histo1y of a cerebrovascular accident, seizure 

disorder, and a cognitive disorder with borderline intellectual functioning. Admin. R. 22-23. The 

ALJ found that, despite these impahments, Johnson retained the residual functional capacity 

("RFC") to perform a range of light work involving simple, repetitive, routine tasks, in a structured 

work environment with predictable work goals, limited postural activities such as stooping, crawling, 

kneeling, and so forth, and limited exposure to hazards. Admin. R. 24-29. 

The vocational expert testified that a person with Johnson's vocational factors and RFC could 

perform light, unskilled occupations such as gaiment smier, linen folder, and tray setter which 

represent hundreds of thousands of jobs in the national economy. Admin. R. 30-31, 63-64. The ALJ 

concluded that Johnson was not disabled within the meaning of the Social Security Act. Admin. R. 

31. 

STANDARD OF REVIEW 

The district court must affom the Commissioner's decision if it is based on proper legal 

standards and the findings of fact are suppmied by substantial evidence in the record as a whole. 

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Substantial evidence is relevant 

evidence that a reasonable person might accept as adequate to suppo1i a conclusion. Richardson v. 

Perales, 402 U.S. 389, 401 (1971). Substantial evidence may be less than a preponderance of the 

evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Under this standard, the 

co mi must consider the record as a whole, and uphold the Commissioner's factual findings that are 

supported by inferences reasonably drawn from the evidence even if another interpretation is also 

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rational. Robbins, 466 F.3d at 882; Batson v. Comm 'r a/Soc. Sec. Adm in., 359 F.3d 1190, 1193 (9th 

Cir. 2004); Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995). 

ASSIGNMENTS OF ERROR 

The claimant bears the burden of showing that the ALJ ened and that any error was hannful. 

JvfcLeod v. As/rue, 640 F.3d 881, 886-87 (9th Cir. 2011). Johnson contends the ALJ ened by 

discrediting her subjective statements, discounting the opinion of Richard Lafrance, M.D., and 

rejecting the lay witness statements of her stepfather, Stefan Jones. She contends these errors led 

the ALJ to elicit testimony from the vocational expert with hypothetical assumptions that did not 

accurately reflect all of her functional limitations and to e11'0neously conclude that she is not 

disabled. 

DISCUSSION 

I. Credibility Determination 

In her application papers, Johnson said her ability to work was limited by seizures, inability 

to remember or comprehend,. extreme fatigue, nausea, dizziness, vomiting, lupus, anemia, and being 

in and out of the hospital. Admin. R. 216, 221-22. In her hearing testimony, Johnson said that she 

had a stroke in 2007 and began taking anticoagulation medications. She began to have seizures in 

July 2009 which corresponds to the alleged onset of her disability. Admin. R. 25, 50-51. She said 

she was unable to work because she had difficulty speaking and thinking and could never tell when 

she would have a seizure. Johnson said her anticonvulsant medications limited her grand ma! 

seizures but she continued to have them two or three times a month. She continued to experience 

smaller seizure episodes a few times a week. Admin. R. 25, 52, 60. 

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The ALJ said that Johnson's medically determinable impaiiments could reasonably be 

expected to cause some of the symptoms she alleged and he did not identify affomative evidence of 

malingering. Admin. R. 25. Under such circumstances, an ALJ must assess the credibility of the 

claimant regarding the severity of symptoms. An adverse credibility determination must include 

specific findings supported by substantial evidence and clear and convincing reasons. Carmickle v. 

Comm 'r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Smolen v. Chafer, 80 F.3d 1273, 

1281-82 (9th Cir. 1996). The findings must be sufficiently specific to permit the reviewing court 

to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Tomasetti v. Astrue, 

533 F.3d at 1039. 

In assessing credibility, an ALJ must consider all the evidence in the case record, including 

the objective medical evidence, the claimant's treatment history, medical opinions, daily activities, 

work histo1y, the observations of third pmiies with knowledge of the claimant's functional 

limitations, and any other evidence that bears on the consistency and veracity of the claimant's 

statements. Tommasetti, 533 F3d at 1039; Smolen, 80 F3d at 1284; SSR 96-7p, 1996 WL 374186, 

at *5. 

The ALJ' s decision demonstrates that he considered all the evidence relating to proper factors 

for evaluating credibility. Contrary to Johnson's allegation of impahments from hype1iension, 

Graves' disease, a blood clotting disorder, and anemia, the ALJ found that the medical records 

showed these conditions were controlled by treatment. Admin. R. 23. The record reflects that 

Johnson has an antiphospholipid antibody syndrome causing a hypercoagulable state for which she 

has had chronic Coumadin therapy. She experienced a pulmonmy embolism in March 2006 and a 

cerebrovascular accident (stroke) in April 2007. After undergoing rehabilitation, Johnson returned 

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to work for over two years, eaming about the same income she earned before the stroke. Admin. R. 

25. She underwent radiation therapy for Graves' disease and takes chronic thyroid replacement for 

hypothyroidism. Jolmson failed to show that these conditions cause functional limitations despite 

treatment. The ALJ properly found that these conditions did not adversely impact Johnson's ability 

to perform basic work activities. Admin. R. 23. See Warre v. Comm 'r of Soc. Sec. Admin., 439 F.3d 

I 00 I, I 006 (9'h Cir. 2006) (Impairments that are effectively controlled by treatment are not 

disabling). 

In addition, contrary to Jolmson's allegation oflimitations from lupus and blindness in one 

eye, the medical records show insufficient diagnostic findings and no treatment for these conditions. 

The ALJ properly concluded that Johnson had failed to establish that these conditions had been 

medically determined. Admin. R. 23. 

The medical evidence supports a seizure disorder throughout the period for which Jolmson 

alleges disability. The ALJ found, however, that Jolmson's treatment records did not support the 

frequency, severity or limiting effects she alleged. Admin. R. 26. Contrary to Jolmson's claim that 

she experienced grand ma! seizures several times a month and small seizures several times a week, 

the ALJ identified long gaps between reported seizures in the treatment records. Admin. R. 26. In 

addition, the ALJ correctly observed that Jolmson's repo1ied seizures often coincided with periods 

of noncompliance with treatment and that she generally failed to follow medical advice. Admin. R. 

27. These reasons for discounting Jolmson's credibility are amply supp01ied by the record. 

Jolmson's seizures began in July 2009 when she was awakened by a general tonic clonic 

grand ma! seizure followed by postictal fatigue, inability to awaken, and confusion. Her postictal 

symptoms abated, however, and the emergency department staff found her neurologically intact and 

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essentially asymptomatic. Admin. R. 453-54. Her doctor began anticonvulsant medications and 

instructed her to prioritize this and ongoing treatment with Coumadin inher budget. Adm in. R. 283-

84. 

Johnson next reported a seizure in October 2009. She returned to the emergency room 

reporting she had experienced two seizures in one day with a one-hour postictal period and a severe 

headache. Labs showed that her anticonvulsant medication level was low, and her prescription 

dosage was increased. Admin. R. 281, 367, 373-74. 

In November 2009, Johnson returned to the emergency room following two seizures in the 

morning with expressive aphasia and difficulty following exact commands. She said she was 

compliant with her prescriptions, but her blood levels of anticonvulsant medication, Coumadin, and 

thyroid replacement were all low and she had THC and barbiturates in her toxicology report. 

Johnson's mother said she had been doing well without seizures for several weeks. When she was 

discharged, Johnson had returned completely to her neurological baseline. Admin. R. 267, 458, 460, 

607. Contemporaneous notes from a follow up with her anticoagulation clinic suggest suspicion of 

poor adherence to her medication regimen. Admin. R. 607. 

In December 2009, Dr. Lafrance, a neurologist, began following Johnson's seizure disorder. 

Johnson told him that she had a daily headache and that her anticonvulsant medication made her feel 

off balance and cognitively slowed. On examination, her physical and neurological findings were 

normal. Dr. Lafrance changed her anticonvulsant medication to Keppra to minimize side effects. 

Admin. R. 414-416 

In late January 2010, Johnson reported no new seizures. Dr. Lafrance noted fluctuations in 

her medication levels due to misunderstanding the doses. Objective findings were normal. Admin. 

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R. 428. In March 2010, Johnson told Dr. Lafrance she was doing well, without seizures. His 

physical and neurological findings were normal. Admin. R. 426. In May 2010, Johnson told her 

primary care doctor that she had been seizure free for six months. Admin. R. 279. In July 2010, 

she told Dr. Lafrance she was doing well without seizure activity or adverse effects from her 

medications. Admin. R. 424. In December 2010, Johnson rep01ied having two seizures in quick 

succession. She admitted to Dr. Lafrance that she missed her medication doses periodically. Dr. 

Lafrance increased her Keppra dosage. Admin. R. 422. Johnson's primary care doctor noted that 

"occasional medication noncompliance and fatigue were likely the cause" of her recent seizures. She 

also urged better compliance with all her medications and counseled Johnson to stop using 

marijuana. Admin. R. 277. 

In February 2011, Johnson's anticoagulation clinic noted a great deal of concern regarding 

Johnson's noncompliance with medications, missing appointments, and failing to return calls to the 

clinic. Admin. R. 346. 

In May 2012, Johnson returned to the emergency room following a seizure, but felt fine by 

the time she arrived. Ambulance personnel said she responded to all their questions appropriately 

at the scene. Johnson reported she had experienced a seizure two months previously and two days 

previously. Admin. R. 462-463. In follow up, Dr. Lafrance added carbamazepine, another 

anticonvulsant, to Johnson's treatment regimen with Keppra. Admin. R. 421. In July 2012, the 

month Johnson filed her disability claims, Dr. Lafrance noted that the new regimen gave her good 

seizure control. Admin. R. 418. 

In August 2012, however, Johnson's mother reported that Johnson was acting out of 

character since the addition of carbamazepine. Johnson was having suicidal ideation and rep01ied 

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Case 6:15-cv-02284-JO Document 15 Filed 03/16/17 Page 7 of 13
to the emergency room. Lab work showed her thyroid replacement medication was out of the 

therapeutic range. Admin. R. 467, 665. Johnson later admitted to Dr. Lafrance that she had used 

methamphetamine two days before going to the emergency room. She appeared to be in good spirits, 

without depression, paranoia or suicidal ideation. Dr. Lafrance discontinued the carbamazepine and 

added Lamictal to her treatment with Keppra. Admin. R. 667-69. In October 2012, Johnson had a 

detailed neurological consultation by John Ellision, M.D. Dr. Ellison noted that her seizure disorder 

appeared to be under control with her latest medication change. Admin. R. 448. Later that month, 

Johnson told Dr. Lafrance she had experienced no seizure activity since the change in medications 

and labs showed that her medications were in the proper therapeutic range. Admin. R. 660-63. 

On October 24, 2012, Johnson went to the emergency room reporting a seizure associated 

with chest tightness, but she had returned to her baseline by the time she anived at the hospital. Her 

objective findings were essentially normal. Lab tests of her medication levels were ordered, but the 

results do not appear in the record. Admin. R. 470. 

In February 2013, Johnson told her primary care doctor that she had not had a seizure for a 

long time, although she thought she might have had one in her sleep recently. Her physical 

examination and neurological findings were normal. Admin. R. 546. In April 2013, Dr. Lafrance 

indicated that "after stmiing Keppra and Lamictal she has been seizure free and doing well." Admin. 

R. 649. Labs showed that her anticonvulsant medications were in the therapeutic range. Admin. R. 

653-54. Dr. Lafrance reminded her that her blood tests showed medications in the good range when 

she took them regularly as prescribed. Admin. R. 647. In October2013, Dr. Lafrance said she was 

still free of grand ma! seizures, but continued to repo1i breakthrough partial seizures. He plmmed 

to increase her Lamictal dosage. Admin. R. 639-40. 

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These treatment records provide substantial support for the ALJ's conclusion that Johnson's 

seizures occuned much less frequently and were much less severe than she alleged. Admin. R. 26. 

Such conflicts between a claimant's subjective complaints and the objective medical evidence 

constitute specific and substantial reasons that unde1mine the claimant's credibility. lvforgan v. 

Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9'h Cir. 1999). 

The record also supports the ALJ's conclusion that Johnson was often noncompliant 

treatment and disregarded medical advice to stop using marijuana. Admin. R. 27. When a claimant 

makes subjective statements about disabling symptoms, but fails to comply with prescribed treatment 

and recommendations, an ALJ may reasonably find the subjective statements unjustified or 

exaggerated. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007); Tonapetyan v. Halter, 242 F.3d 

1144, 1147-48 (9'h Cir. 2001). 

The ALJ also noted that Johnson engaged in daily activities that led him to question the 

credibility of her alleged limitations. Johnson was able to live alone with her four children, perform 

household chores, read, watch movies, do crossword puzzles, help with homework, go on walks, 

attend church, and maintain social relationships. Admin. R. 27, 53-57, 446, 560. While these 

activities are quite limited and not equivalent to the requirements of work, they can reasonably be 

viewed as inconsistent with her alleged inability to speak, think, comprehend, remember, or engage 

in activities due to extreme fatigue. 

Finally, the ALJ noted that Johnson had a meager work history predating her alleged 

disability which led him to think she had reasons other than her medical condition for not working. 

Admin. R. 27. When a person chooses not to work for reasons unrelated to disability, it may 

reasonably cast doubt on a subsequent claim that she cannot work due to a disabling medical 

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condition. Bruton v. A!fassanari, 268 F.3d 824, 828 (9'h Cir. 2001). 

The ALJ articulated clear and convincing reasons for his adverse credibility dete1mination 

and his findings are suppo1ied by substantial evidence. Carmickle, 533 F.3d at 1160; Smolen v. 

Chafer, 80 F.3d at 1281-82. His findings are sufficiently specific to satisfy me that he did not 

arbitrarily discredit Johnson's subjective statements. Tomasetti v. Astrue, 533 F.3d at 1039. 

II. Opinion of Dr. LaFrance 

Johnson contends the ALJ improperly discounted the opinion ofDr. Lafrance. As described 

previously, Dr. Lafrance began following Johnson's seizure disorder in December 2009 and had 

intermittent contact with her thereafter. His treatment notes have been adequately described for the 

present purposes. 

On October 17, 2012, Dr. Lafrance completed a Seizures Residual Functional Capacity 

Questionnaire. Dr. Lafrance indicated that Johnson experienced monthly seizures typically lasting 

ten minutes with postictal symptoms lasting up to 24 hours. He said that, following a seizure, 

Johnson was unable to care for herself or others. He said she suffered from medication side effects, 

including lethargy, lack of alertness, and diminished cognition. Dr. Lafrance opined that Johnson 

would be likely to disrupt coworkers, would require extra supervision, and would need unscheduled 

one-hour breaks on a daily basis. He said Johnson would miss work three to four times a month as 

a result of her seizure disorder. Admin. R. 522-25. 

The ALJ gave Dr. LaFrance's questionnaire little weight in his decision. Admin. R. 28. An 

ALJ can reject an examining physician's opinion that is inconsistent with the opinions of other 

physicians, if the ALJ makes "findings setting fmih specific, legitimate reasons for doing so that are 

based on substantial evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) 

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quotingA'fagallanes v. Bowen, 881f.2d747, 751 (9th Cir. 1989); Lester v. Chafer, 81f.3d821, 830 

(9th Cir. 1995). An uncontradicted opinion may be rejected for clear and convincing reasons. 

Thomas, 278 f.3d at 956-57. Here, Dr. Lafrance's opinion is not entirely consistent with that of Dr. 

Ellison or those of the agency reviewing expe1is. In any event, the ALJ' s reasoning was adequate 

under either standard. 

The ALJ found Dr. Lafrance's opinion of Johnson's limitations inconsistent with his own 

treatment records and the record as a whole. Admin. R. 28. The treatment history described 

previously reflects that Johnson experienced seizures much less frequently than Dr. Lafrance 

indicated, particularly when she was compliant with her prescribed medications. Contrary to Dr. 

Lafrance's opinion, her postictal symptoms generally abated quickly after her seizures and she was 

often asymptomatic by the time she was seen for medical treatment. Contrary to his opinion that she 

has ongoing side effects from her medications, the records reflect that she rep01ied side effects only 

during the brief time she was taking carbamazepine and admitted contemporaneously using illicit 

drugs. Dr. Lafrance then adjusted her regimen and she denied side effects thereafter. Dr. Lafrance 

did not identify any basis for his opinion that Johnson would miss work frequently or require 

unscheduled breaks on a daily basis. An ALJ need not accept a medical opinion that is unsuppo1ied 

by clinical findings. Bayliss v. Barnhart, 427 f.3d 1211, 1216 (9th Cir. 2005). An ALJ may 

properly discount a medical opinion that is conclusory, in abbreviated form, and unsupported by 

objective evidence or supp01iing rationale. Batson, 359 f Jd at 1195. In the absence of supporting 

findings and rationale, it is reasonable to infer that Dr. Lafrance premised his opinion on Johnson's 

subjective reports. An ALJ is entitled to reject a medical opinion that is premised primarily on 

subjective complaints that the ALJ found unreliable. Tonapetyan v. Halter, 242 f.3d at 1149. 

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III. Lay Witness Statement 

Johnson contends the ALJ improperly discounted the lay witness statements ofher stepfather 

Stefan Jones. Jones testified at Johnson's administrative hearing regarding her seizure disorder. He 

said he thought Johnson was taking her medications regularly, but did not know. He said he thought 

Johnson was having grand ma! seizures two or three times a week based on his observations during 

a four-day period when she stayed at his house. He said he had not witnessed any small seizures. 

Jones said that Johnson visited about one day a week, but did not stay at his house for an entire week 

very often. Admin. R. 67-69. 

The ALJ did not discredit Jones's testimony regarding his personal observation of two 

seizures during the four-day period while Johnson stayed at his house. Regarding Jones' s testimony 

about the frequency of Johnson's seizures and her compliance with medications, the ALJ found he 

lacked personal knowledge. The ALJ therefore discounted Jones's testimony that Johnson was 

compliant with medications, that she experienced two to three grand ma! seizures a week, and that 

she continued to have frequent small seizures. The ALJ concluded that Jones' s testimony did not 

supp01i greater limitations than those in the RFC assessment. Admin. R. 29. 

An ALJ must consider the testimony of a lay witness, but may discount it for reasons 

germane to the witness. Valentine v. Comm 'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). 

The ALJ' s reasons must be supported by substantial evidence, but may appear anywhere in the 

decision without being tied directly to the evaluation of the lay witness statement. Lewis v. Apfel, 

236 F.3d 503, 512 (9th Cir. 2001). 

Here, the ALJ considered Jones's testimony and provided ge1mane reasons to discount the 

portions he found umeliable. Additional germane reasoning supp01iing the ALJ' s assessment of 

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Jones's testimony is evident elsewhere in the decision, including the ALJ's evaluation ofJohnson's 

credibility and the questionnaire completed by Dr. Lafrance. See 1'1folina v. Astrue, 674 F.3d 1104, 

1117-18 (9th Cir. 2012) (ALJ's well-supported reasons for rejecting the claimant's testimony apply 

equally well to lay witness testimony describing the same limitations); Lewis v. Apfel, 236 F.3d at 

512. Accordingly the ALJ did not elToneously ignore the lay evidence. 

IV. Vocational Testimony 

Johnson contends the ALJ elicited testimony from the VE with hypothetical assumptions that 

did not include all of the limitations described in her subjective statements, the opinion of Dr. 

Lafrance, and Jones's lay witness testimony. The ALJ elicited testimony from the VE based on 

hypothetical questions that accurately reflected his assessment of Johnson's RFC. The VE testified 

that jobs exist in the national economy that a person with the described RFC could perform. Admin. 

R. 63-64. Because I find no e!Tor in the ALJ's RFC assessment, the hypothetical limitations posed 

to the VE were also free of error, and the VE's testimony satisfied the Commissioner's burden to 

show there are jobs in the national economy that Johnson could perform. Andrews v. Shala/a, 53 

F.3d at 1043. The ALJ was not required to include additional hypothetical limitations he found 

unsupported by the record. Osenbrockv. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). 

CONCLUSION 

For the foregoing reasons, the Commissioner's final decision is AFFIRMED. 

DATED this {(iitc day of March, 2017. 

Rober . J nes, Senior Judge 

Unite ates District Court 

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