IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JENNIFER JOANNE GARRETT, 6:15-CV-00949-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

KATHRYN TASSINARI

DREW L. JOHNSON

Drew L. Johnson, P.C.

Eugene, OR 97401

(541) 434-6466

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) 727-1011

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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 98104-7075

(206) 615-2112

Attorneys for Defendant

BROWN, Judge.

Plaintiff Jennifer Joanne Garrett seeks judicial review of a

final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's application for

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

Security Act (Act) and for Supplemental Security Income under

Title XVI of the Act. This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). 

Following a review of the record, the Court AFFIRMS the

decision of the Commissioner and DISMISSES this matter. 

ADMINISTRATIVE HISTORY

Plaintiff protectively filed her applications on August 16,

2011, and alleged a disability onset date of September 2, 2006. 

Tr. 205-12.1 The applications were denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held a

1

 Citations to the official transcript of record filed by

the Commissioner on October 20, 2015, are referred to as "Tr."

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hearing on October 1, 2013. Tr. 26-63. At the hearing Plaintiff

was represented by an attorney. Plaintiff and a vocational

expert (VE) testified.

The ALJ issued a decision on October 18, 2013, in which he

found Plaintiff is not disabled. Tr. 7-25. That decision became

the final decision of the Commissioner on April 6, 2015, when the

Appeals Council denied Plaintiff's request for review. Tr 1-4. 

See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On June 1, 2015, Plaintiff filed a Complaint in this Court

seeking review of the Commissioner’s decision.

BACKGROUND

Plaintiff was born on November 7, 1977, and was 35 years old

at the time of the hearing before the ALJ. She completed high

school and was in special education throughout high school. She

has past relevant work experience as a grocery bagger, a grocery

clerk, and an assistant manager. Tr. 57.

Plaintiff alleges disability due to “mental illness,

thyroid, blood disorder, fibromyalgia, anxiety disorder, panic

disorder, ADHD, PTSD, blood disorder, iron deficiency, thyroid,

depression, wrist and hand injury, headaches, [and] chronic

fatigue.” Tr. 238. 

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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

(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). 

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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

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.

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. 

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

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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. 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),

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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 (SGA) since her September 2,

2006, alleged onset date. Tr. 12. Plaintiff met the insured

status requirements of the Social Security Act through 

December 31, 2015.

At Step Two the ALJ found Plaintiff had severe impairments

of fibromyalgia, obesity, back impairments, bilateral shoulder

impairments, hypothyroidism, depression, anxiety, panic disorder

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with agoraphobia, post-traumatic stress disorder (PTSD), bipolar

disorder, somatization disorder, sleep disorder/insomnia, alcohol

abuse, and anxiolytic abuse. Tr. 12. 

At Step Three the ALJ found Plaintiff’s impairments do not

meet or equal any listed impairment. Tr. 13. The ALJ found

Plaintiff has the RFC for a limited range of light work and can

lift and carry 10 pounds frequently and twenty pounds

occasionally. She can frequently climb ramps and stairs;

frequently stoop, kneel, crouch, and crawl, but may never climb

ladders, ropes or scaffolds; may occasionally reach and work

overhead with the bilateral upper extremities; and must avoid

more than occasional exposure to extreme cold, vibration, and

hazards such as moving machinery and unsecured heights. The

claimant is capable of learning, remembering, and performing

simple, routine, and repetitive work tasks involving simple work

instructions that are performed in a routine, predictable, and

low-stress work environment (defined as one in which there is a

regular production pace, few workplace changes, and no “over the

shoulder” supervision) and may have occasional contact with

supervisors and coworkers and minimal contact with the public. 

Tr. 14-15.

At Step Four the ALJ found even though Plaintiff is

incapable of performing past relevant work, Plaintiff retains the

ability to perform other jobs that exist in the national economy. 

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Accordingly, the ALJ found Plaintiff is not disabled. Tr. 18. 

DISCUSSION

Plaintiff contends the Commissioner erred by (1) finding

Plaintiff less than fully credible, (2) failing to properly 

weigh medical evidence, (3) failing to develop the record, and

(4) improperly weighing lay-witness testimony.

I. Credibility of Plaintiff’s Testimony

 Plaintiff contends the ALJ erred when he found Plaintiff’s

testimony was not fully credible. 

The ALJ is responsible for determining credibility,

resolving conflicts in medical testimony, and resolving

ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

1995). See also Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th Cir.

2008). The ALJ's findings, however, must be supported by

specific, cogent reasons. Reddick v. Chater, 157 F.3d 715, 722

(9th Cir. 1998). See also Holohan v. Massanari, 246 F.3d 1195,

1202 (9th Cir. 2001). Unless there is affirmative evidence that

shows the claimant is malingering, the Commissioner's reason for

rejecting the claimant's testimony must be "clear and

convincing." Id. The ALJ must identify the testimony that is

not credible and the evidence that undermines the claimant's

complaints. Id. The evidence on which the ALJ relies must be

substantial. Id. at 724. See also Holohan, 246 F.3d at 1208. 

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General findings (e.g., "record in general" indicates

improvement) are an insufficient basis to support an adverse

credibility determination. Reddick, 157 F.3d at 722. See also

Holohan, 246 F.3d at 1208. The ALJ must make a credibility

determination with findings sufficiently specific to permit a

reviewing 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).

When deciding whether to accept a claimant's subjective

symptom testimony, "an ALJ must perform two stages of analysis: 

the Cotton analysis and an analysis of the credibility of the

claimant's testimony regarding the severity of her symptoms." 

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).

Under the Cotton test, a claimant who alleges

disability based on subjective symptoms "must 

produce objective medical evidence of an underlying impairment which could reasonably be 

expected to produce the pain or other symptoms

alleged." Bunnell, 947 F.2d at 344 (quoting 

42 U.S.C. § 423(d)(5)(A) (1988)); Cotton, 799 

F.2d at 1407-08. The Cotton test imposes only 

two requirements on the claimant:(l) she must 

produce objective medical evidence of an 

impairment or impairments; and (2) she must 

show that the impairment or combination of 

impairments could reasonably be expected to

(not that it did in fact) produce some degree 

of symptom. 

Smolen, 80 F.3d at 1282. See also Carmickle v. Comm’r Soc. Sec.

Admin., 533 F.3d 1155, 1160 (9th Cir. 2008). 

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A. Plaintiff’s Function Report and Pain Questionnaire

Plaintiff completed an Adult Function Report on 

September 15, 2011. Tr. 259-66. Plaintiff reported she was

“constantly tired, in pain, [and] depressed.” Tr. 259. On some

days she does not get out of bed. She stated she has a severe

learning disability that makes it hard to complete tasks, and she

has trouble concentrating. Plaintiff also reported she injured

her hands and wrists at the gym, her legs and feet swell making

it hard to stand, and she has anxiety and panic attacks that make

her vomit.

Plaintiff stated she gets up when she feels rested and does

laundry and household chores depending on her pain and energy

levels. Tr. 260. She watches television and sleeps until panic

attacks wake her. Plaintiff’s asthma makes it hard to breathe at

night. Some days she does not get dressed and her appetite is

poor. Her mother calls her daily to remind her to care for her

personal needs. 

Plaintiff stated she prepares protein drinks, sandwiches,

and raw vegetables for food. Tr. 261. She cleans the kitchen,

vacuums, and does laundry, and it takes all day to complete her

chores. Tr. 262. She gets overwhelmed and takes breaks, and

sometimes her mother will come to help her. Plaintiff does not

drive due to fear of panic attacks, and she does not have a

driver’s license because the written test would be difficult for

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her due to her reading comprehension issues. She shops for food

two or three times a month for an hour or two each trip. 

Plaintiff reported she is no longer able to work out at the

gym very often, and she does not go out except for appointments. 

Tr. 263. She is able to lift 15 to 20 pounds depending on how

her back feels, and she can walk three to four blocks before

requiring rest. Her ability to walk is affected by the weather,

her asthma, and her allergies. Plaintiff is unable to pay

attention for very long, and she has trouble following written

instructions. Tr. 264. Stress causes her to “panic, freak out,

cry, sleep a lot, get angry, [and] yell.” Tr. 265. She does not

like changes in her routine. Plaintiff is afraid of fire,

driving, dying, germs, and people. Tr. 265. She takes Effexor,

which causes dizziness and panic; Xanax, which causes a racing

heart beat; ferrate, which causes diarrhea; and Benadryl, which

causes hives. 

Due to pain from fibromyalgia, Plaintiff reported she has

trouble lifting, squatting, bending, reaching, walking, sitting,

kneeling, stair climbing, and using her hands. Tr. 266. 

B. Plaintiff’s Testimony at the Hearing

Plaintiff testified at the October 1, 2013, hearing before

the ALJ. Tr. 26-63. She was incarcerated at the time and had

been for the past eight months after conviction for attempting to

use a child in an inappropriate display (texting nude photos to

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him) and for having a sexual relationship with a minor aged 16. 

Tr. 32-33. The minor was her best friend’s son. Plaintiff

expected to be released in August 2014.

She graduated from high school and was in special education

classes for 12 years. Tr. 33. She last worked at Albertsons as

assistant manager of customer service. She left after seven

years because “the bosses that I had were not kind to me. They

were always giving me grief about getting sick all the time. I

had a low immune system . . . . It got to the point where with

my mental stuff that was going on, I couldn’t handle it anymore.” 

Tr. 34-35. She quit in September 2006. She became a foster

parent to three children shortly before leaving her job. She

briefly worked as a server in a restaurant and worked for four

days at Fred Meyer, but she had “a massive panic attack and quit

my job.” Tr. 35. Plaintiff stated her managers picked on her

and made fun of her in front of customers. She stated Albertsons

managers threatened to fire her for small errors, they harassed

her for having doctors’ appointments, and they forced her to work

when she was sick. Tr. 35-36. 

During the four days that Plaintiff worked at Fred Meyer,

she worked in the deli and had three days training. Even though

her managers knew she had a learning disability, they did not

have any patience with her, “and it got to the point where I

just, I couldn’t do it. I panicked to the point where I almost

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passed out. My anxiety just was through the roof.” Tr. 36. 

Plaintiff described herself as “overly emotional” and highstrung. Tr. 37. Panic attacks cause her to “get frustrated and

I don’t, I shut down. I don’t cope.” Tr. 37. She startles

easily and cannot calm down. Her heart rate rises, she

hyperventilates, and she sometimes faints. In September 2006 she

had panic attacks weekly.

Plaintiff was diagnosed with bipolar disorder two years

before the hearing. Tr. 39. She testified she suffers from

depression, and she isolated herself and lost friends about nine

months before her arrest. She has had fibromyalgia since age 14. 

She has severe pain throughout her body, her legs swell and ache,

and she cannot wear shoes or socks. Tr. 39-40. She suffers from

fatigue, insomnia, bulging discs, and scoliosis. She also has a

problem with her shoulder and rotator cuff. There are days when

she cannot get out of bed, and the bad days outnumber the good

days. The correctional institution requires her to work, and she

recently requested to be put on light-duty work. Tr. 40. 

Plaintiff believes her physical and emotional issues render her

unable to work full-time. 

Plaintiff testified: 

I can’t stand for any part of like a long time.

I can’t walk for a long distance. I basically 

can lay down for a little bit and then my body

starts to hurt, so I have to get up to move,

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move around, sit. It’s like a cycle. It’s

throughout the day.

Tr. 41. 

Before she was incarcerated Plaintiff required an entire

week to do the household chores. Tr. 42. In December 2012 she

admitted herself to a hospital psychiatric unit and stayed for 18

days with suicidal ideation. Tr. 43. The doctors wanted her to

stay longer, but she had to pack up her apartment because she was

about to become homeless. Plaintiff isolated herself for six

years prior to her arrest and stayed in her room with her

emotional-support dog.

Plaintiff testified she has trouble focusing on written

materials, and her comprehension is poor. Tr. 44-45. She has

trouble communicating and is told she is confusing. Her

concentration is also poor. PTSD causes her to be unable to

tolerate confrontation, and she startles easily. She thinks she

became unable to work when she quit the job at Fred Meyer.

Plaintiff testified the correctional institution had her on

work detail as a unit orderly. She mopped; swept; wiped down

tables; and cleaned the bathrooms, showers, and sinks. 

Tr. 49. Plaintiff stated:

Basically I am a really good worker in the past,

and I have a good work ethic. And I get up and

do my job, as best as I can, and usually I am 

stuck doing everyone else’s job. And it’s to 

the point now, I can’t handle it anymore. I 

[have] done this for six months, and I have

struggled through this.

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Id.

Plaintiff testified she did not know if she would be able to

take care of herself if she were home. Plaintiff denied alcohol

and anxyalytic abuse. There was one incident involving alcohol

and Xanax before her December 2012 hospitalization, and the

diagnoses apparently were the result of that incident.

Even though chart notes dated May 2010 erroneously indicate

she was going to the gym five times a week, she stated she was

only going to the gym about three days a week. Tr. 52. 

C. The ALJ’s Finding Regarding the Credibility of 

Plaintiff’s Testimony

The ALJ found Plaintiff’s testimony was not entirely

credible. Tr. 17. 

When assessing credibility the ALJ is allowed to consider

the consistency of a claimant’s statements. SSR 96-7p, at *5.

See also Thomas, 278 F.3d at 958. The ALJ noted Plaintiff’s

statements were inconsistent as to why she stopped working. 

Specifically, Plaintiff testified she quit working because of

panic attacks, depression, and severe general pain that rendered

her unable to get out of bed some days. Tr. 34-35. In August

2010, however, Plaintiff told her counselor that she quit when

she adopted three children, and in February 2011 she told a

medical provider that she could not work because she had to be

there for her children. Tr. 17, 562, 639.

The ALJ also noted Plaintiff reported she was diagnosed with

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Attention Deficit Hyperactivity Disorder (ADHD). Tr. 17, 946.

There is not, however, any diagnosis of ADHD in the record. 

Tr. 946. Plaintiff also testified she was diagnosed with

fibromyalgia at age 14, but this is not supported by the medical

evidence. Tr. 17, 39-40. 

The ALJ concluded Plaintiff’s alleged limitations were

inconsistent with her activities. Tr. 17-18. The ALJ noted

Plaintiff was independent in personal care and grooming; could 

prepare simple meals; did household chores including cleaning the

kitchen, laundry, and vacuuming; used public transportation;

grocery shopped; and went to medical appointments. Tr. 17, 

259-63. The ALJ also pointed out that Plaintiff was looking for

work in November 2009, which was three years after her alleged

onset date (Tr. 17, 370); in May 2010 Plaintiff was going to the

gym five days a week (Tr. 17, 650); in February 2011 Plaintiff

was injured playing volleyball (Tr. 17, 345, 639); in July 2012

Plaintiff was babysitting; and in August 2012 Plaintiff was

exercising on an elliptical machine and stair-stepper. 

Tr. 17-18, 724, 721. Plaintiff also testified she had been on a

work detail for six months that involved mopping floors, cleaning

tables, sweeping, cleaning bathrooms, and folding towels. 

Tr. 18, 49. 

The ALJ may rely on a claimant’s daily activities to form

the basis of an adverse credibility determination. Orn v.

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Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here the ALJ

identified daily activities that contradict Plaintiff’s testimony

about her limitations. 

On this record the Court concludes the ALJ did not err when

he found Plaintiff’s testimony less than fully credible because

the ALJ provided legally sufficient reasons supported by

substantial evidence in the record for doing so.

II. The Medical Evidence

Disability opinions are reserved for the Commissioner. 20

C.F.R. §§ 404.1527(e)(1); 416.927(e)(1). If a conflict does not

arise between medical source opinions, the ALJ generally must

accord greater weight to the opinion of a treating physician than

that of an examining physician. Lester, 81 F.3d at 830. More

weight is given to the opinion of a treating physician because

the person has a greater opportunity to know and to observe the

patient as an individual. Orn, 495 F.3d at 632. In such

circumstances the ALJ should also give greater weight to the

opinion of an examining physician over that of a reviewing

physician. Id. If a treating or examining physician’s opinion

is not contradicted by another physician, the ALJ may only reject

it for clear and convincing reasons. Id. (Treating physician);

Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir.

2006)(examining physician). Even if one physician is

contradicted by another physician, the ALJ may not reject the

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opinion without providing specific and legitimate reasons

supported by substantial evidence in the record. Orn, 495 F.3d

at 632; Widmark, 454 F.3d at 1066. The opinion of a nonexamining

physician by itself is insufficient to constitute substantial

evidence to reject the opinion of a treating or examining

physician. Widmark, 454 F.3d at 1066 n.2. The ALJ may reject

physician opinions that are “brief, conclusory, and inadequately

supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d

1211, 1216 (9th Cir. 2005).

Scott Alvord, Psy. D., conducted a consultative

psychological evaluation of Plaintiff in April 2012. Tr. 618-24. 

Dr. Alvord conducted a mental-status examination and clinical

interview, but he did not have any medical records to review and

he did not administer any tests. Tr. 618. Dr. Alvord diagnosed

Plaintiff with PTSD; major depressive disorder, recurrent

(moderate); and Rule Out learning disorder (not otherwise

specified). He opined Plaintiff’s adaptive functioning from a

psychiatric perspective fell in the moderate range of impairment. 

Tr. 623. 

The ALJ noted Dr. Alvord’s report and gave it significant

weight. Tr. 16. The ALJ, however, noted Dr. Alvord “does not

provide specific comment on how the claimant’s impairments would

affect her ability to function in a work setting.” Tr. 16.

Plaintiff contends the ALJ erred in his consideration of 

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Dr. Alvord’s opinion by failing to note that Dr. Alvord found a

learning disability “should be ruled out.” Tr. 623. The record,

however, reflects the ALJ specifically noted that rule-out

diagnosis. Tr. 16. 

Plaintiff also contends the ALJ should have fully credited

Dr. Alvord’s opinion. The ALJ, however, included limitations

noted by Dr. Alvord when the ALJ evaluated Plaintiff’s RFC; for

example, the ALJ included Plaintiff’s moderate range of

impairment and limitations to “simple, routine, and repetitive

work tasks, involving simple work instructions, which are

performed in a routine, predictable, and low stress work

environment, defined as one in which there is a regular

production pace [with] few work pace challenges.” Tr. 14.

On this record the Court concludes the ALJ did err when he

gave only “significant” weight to Dr. Alvord’s opinion because

the ALJ provided legally sufficient reasons supported by

substantial evidence in the record. 

III. The ALJ’s Duty to Develop the Evidence

Plaintiff contends the ALJ erred by failing to order

psychological testing for Plaintiff for the purpose of ruling out

a learning disorder and by failing to order intellectual and

cognitive testing. Plaintiff argues IQ testing can be a deciding 

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factor when determining intellectual disability and establishment

of a learning disability would likely have altered the ALJ’s

evaluation of Plaintiff’s RFC. Plaintiff does not specify the

functional limitations arising from a documented learning

disability that were not accommodated by her RFC nor does she

cite any authority that indicates a “rule-out” diagnosis triggers

the ALJ’s duty to develop the record.

“An ALJ’s duty to develop the record further is triggered

only when there is ambiguous evidence or when the record is

inadequate to allow for proper evaluation of the evidence.” 

Mayes, 276 F.3d at 459-60. On this record the evidence is not

ambiguous and is adequate for proper evaluation. Thus, the Court

concludes the ALJ did not err when he did not order another

psychological evaluation or IQ testing for Plaintiff.

IV. The Lay-Witness Testimony

The ALJ has a duty to consider lay-witness testimony. 20

C.F.R. §§ 404.1513(d); 404.1545(a)(3); 416.945(a)(3); 416.913(d).

See also Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 

Friends and family members in a position to observe the

claimant's symptoms and daily activities are competent to testify

regarding the claimant's condition. Dodrill v. Shalala, 12 F.3d

915, 918-19 (9th Cir. 1993). The ALJ may not reject such 

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testimony without comment and must give reasons germane to the

witness for rejecting her testimony. Nguyen v. Chater, 100 F.3d

1462, 1467 (9th Cir. 1996). Inconsistency with the medical

evidence, however, may constitute a germane reason. Lewis, 236

F.3d at 512. The ALJ may also reject lay testimony predicated on

the testimony of a claimant properly found to be not credible. 

Valentine, 574 F.3d at 694.

Plaintiff’s daughter, Cynthia Jones, completed a Third Party

Adult Function Report in which she reported her mother does not

sleep well, is often fatigued, does not get dressed or bathe

daily, takes a long time to do chores like laundry, and often

does not complete a chore. Tr. 268-69. Jones reported she helps

her mother with light house work and also calls daily to remind

her mother to take her medications. Tr. 267-69. Jones estimated

her mother can walk three or four blocks depending on her

allergies. She stated Plaintiff cannot handle stress or stay on

a routine. Tr. 273. 

The ALJ noted Jones’s report, but he found the limitations

she indicated were inconsistent with the medical evidence in the

record. Tr. 16-17. 

On this record the Court concludes the ALJ did not err when

he rejected Jones’s lay-witness opinion because the ALJ provided 

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legally sufficient reasons for doing so. 

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 14th day of June, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

 

 

 

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