IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

RENAE JOHNSON, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration, 

Defendant. 

BRUCE W. BREWER 

P.O. Box 421 

West Linn, OR 97068 

(503) 621-6633 

Attorney 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 

1 - OPINION AND ORDER 

3:15-CV-01982-BR 

OPINION AND ORDER 

Case 3:15-cv-01982-BR Document 16 Filed 01/30/17 Page 1 of 21
DAVID MORADO 

Regional Chief Counsel 

FRANCO L. BECIA 

Special Assistant United States Attorney 

Social Security Administration 

701 Fifth Avenue, Suite 2900, M/S 901 

Seattle, WA 98104 

(206) 615-2114 

Attorneys for Defendant 

BROWN, Judge. 

Plaintiff Renae Johnson seeks judicial review of a final 

decision of the Commissioner of the Social Security 

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

for 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 filed an application for Disability Insurance 

Benefits (DIB) on November 18, 2001, and alleged a disability 

onset date of October 1, 1997. Tr. 45. 1 The application was 

denied initially and on reconsideration. An Administrative Law 

Judge (ALJ) held a hearing on December 3, 2003. Tr. 45. At the 

1 Citations to the official transcript of record filed by 

the Commissioner on June 10, 2016, are referred to as "Tr." 

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hearing Plaintiff was represented by an attorney. Plaintiff, a 

vocational expert (VE), and lay witnesses testified at the 

hearing. 

The ALJ issued a decision on February 18, 2004, in which he 

found Plaintiff was not disabled, and, therefore, was not 

entitled to DIB. Tr. 45. Plaintiff appealed the matter to the 

United States District Court. On October 6, 2005, United States 

District Judge Ann Aiken granted the parties' stipulated Motion 

to Remand. On October 11, 2005, Judge Aiken entered a Judgment 

of Remand. 

An ALJ held a hearing on remand on May 10, 2006. Tr. 45. 

On May 23, 2006, an ALJ issued a decision on remand in which he 

found Plaintiff was not disabled through her December 31, 2004, 

date last insured. Tr. 54. 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. Plaintiff did not appeal the Appeal Council's denial 

to the United States District Court. 

On May 12, 2006, Plaintiff filed an application for SSI and 

alleged a disability onset date of October 1, 1997. Tr. 103. 

Plaintiff subsequently amended her alleged onset date to May 12, 

2006. Tr. 19. The application was denied initially and on 

reconsideration. An Administrative Law Judge (ALJ) held a 

hearing on March 30, 2009. Tr. 19. At the hearing Plaintiff was 

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represented by an attorney. Plaintiff and a vocational expert 

(VE) testified at the hearing. 

The ALJ issued a decision on June 17, 2009, in which he 

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

to SSI. Tr. 19-30. Plaintiff appealed the matter to the United 

States District Court. On June 4, 2012, United States District 

Judge Ann Aiken entered a Judgment of Remand. 

On September 27, 2012, the Appeals Council entered an order 

in which it remanded the matter to the ALJ to "[f)urther evaluate 

[Plaintiff's) mental impairment," to "[g)ive further 

consideration to [Plaintiff's) maximum [RFC) and provide 

appropriate rationale with specific references to evidence in 

support of the assessed limitations," and to "obtain evidence 

from a vocational expert to clarify the effect of the assessed 

limitations on [Plaintiff's) occupational base." Tr. 1105. 

An ALJ held a hearing on remand on November 4, 2013. 

Tr. 1352-80. At the hearing Plaintiff was represented by an 

attorney, and Plaintiff and a lay witness testified. On 

December 9, 2013, an ALJ issued a decision on remand in which he 

found Plaintiff is not disabled. Tr. 1086-1102. 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. Tr. 1070-73. See Sims v. Apfel, 530 U.S. 

103, 106-07 (2000). 

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BACKGROUND 

Plaintiff was born on February 27, 1970, and was 43 years 

old at the time of the 2009 hearing. Tr. 103. Plaintiff 

graduated from high school. Tr. 1101. Plaintiff has past 

relevant work experience as a cashier, janitor, and airport 

cleaner. Tr. 1101. 

Plaintiff alleges disability due to fibromyalgia, a back 

injury, a cognitive disorder, arthritis, weakness in her right 

leg, and depression. Tr. 112. 

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

summary of the medical evidence. After carefully reviewing the 

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

medical evidence. See Tr. 1089-91, 1095-99. 

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 

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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 (9ili 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). 

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). 

6 - OPINION AND ORDER 

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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 

The Commissioner has developed a five-step sequential 

inquiry to determine whether a claimant is disabled within the 

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 

2007). See also 20 C.F.R. § 416.920. Each step is potentially 

dispositive. 

At Step One the claimant is not disabled if the Commissioner 

determines the claimant is engaged in substantial gainful 

activity. 20 C.F.R. § 416.920(b). See also Keyser v. Comm'r of 

Soc. Sec., 648 F.3d 721, 724 (9~ 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. 

§ 416.920(c). 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 a 

number of listed impairments that the Commissioner acknowledges 

are so severe they preclude substantial gainful activity. 20 

C.F.R. § 416.920(a) (4) (iii). See also Keyser, 648 F.3d at 724. 

7 - OPINION AND ORDER 

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_ criteria for the listed impairments, known as Listings, are 

enumerated in 20 C.F.R. part 404, subpart P, appendix l (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. 

§ 416.945(a). 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. § 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. § 416.920(a) (4) (v). See also 

Keyser, 648 F.3d at 724. Here the burden shifts to the 

Commissioner to show a significant number of jobs exist in the 

8 - OPINION AND ORDER 

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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. § 416.920(g) (1). 

ALJ'S FINDINGS 

At Step One the ALJ found Plaintiff has not engaged 

in substantial gainful activity since her May 12, 2006, 

application date. Tr. 1088. 

At Step Two the ALJ found Plaintiff has the severe 

impairments of chronic neck pain due to disc protrusion at C6-7, 

chronic low-back pain due to compression fractures and 

degenerative disc disease, fibromyalgia, a cognitive disorder, 

and an anxiety disorder. Tr. 1088. The ALJ found Plaintiff's 

conditions of a somatoform disorder and a conversion disorder are 

not medically determinable impairments. Tr. 1090. 

At Step Three the ALJ concluded Plaintiff's impairments do 

not meet or equal the criteria for any Listed Impairment from 20 

C.F.R. part 404, subpart P, appendix 1. The ALJ found Plaintiff 

has the RFC to lift and/or to carry ten pounds frequently and 20 

pounds occasionally. Tr. 1093. The ALJ found Plaintiff could 

9 - OPINION AND ORDER 

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occasionally reach overhead; climb ladders, ropes, or scaffolds; 

bend; twist; crouch; crawl; and interact with the public. 

Tr. 1093. The ALJ found Plaintiff can perform one-to-three step 

routine work and "must have the option to sit or stand at will." 

Tr. 1093. 

At Step Four the ALJ found Plaintiff is unable to perform 

her past relevant work. Tr. 1101. 

At Step Five the ALJ found Plaintiff could perform jobs that 

exist in significant numbers in the national economy. Tr. 29. 

Accordingly, the ALJ found Plaintiff is not disabled. 

DISCUSSION 

Plaintiff contends the ALJ erred when he (1) improperly 

rejected Plaintiff's testimony in part, (2) improperly rejected 

the testimony and statements of lay witnesses, and (3) improperly 

failed to reassess Plaintiff's RFC and instead adopted the RFC 

finding from the 2004 decision on Plaintiff's DIB application. 

I. The ALJ did not err when he partially rejected Plaintiff's 

testimony. 

Plaintiff alleges the ALJ erred by failing to provide clear 

and convincing reasons for partially rejecting her 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 

10 - OPINION AND ORDER 

Case 3:15-cv-01982-BR Document 16 Filed 01/30/17 Page 10 of 21
or combination of impairments could reasonably be expected to 

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

1986), aff'd in Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 

1991) . 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 reject the 

claimant's pain testimony only if he 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 November 2013 hearing on remand Plaintiff testified 

she has pain in her lower back, her right leg, her neck, and her 

left arm. Plaintiff stated her pain has become worse since her 

March 2009 hearing. Plaintiff stated she is "on 90 Percocets," 

Neurontin, and muscle relaxers in an effort to control her pain. 

Tr. 1361. 

The ALJ found Plaintiff's "medically determinable 

impairments could reasonably be expected to cause some symptoms," 

but Plaintiff's testimony "concerning the intensity, persistence 

11 - OPINION AND ORDER 

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and limiting effects of [her] symptoms are not entirely 

credible." Tr. 1094. The ALJ stated the record as a whole was 

inconsistent "with the debilitating symptoms and limitations" 

alleged by Plaintiff. For example, the ALJ noted Plaintiff 

underwent a cervical fusion in April 2006 to address a disc 

herniation at C6-7. In July 2006 Plaintiff underwent ankle 

surgery on her right ankle. In October 2006 Plaintiff reported 

doing very well and had only occasional complaints of ankle pain. 

Tr. 413, 

In September 2006 Christopher Komanapalli, M.D., examined 

Plaintiff. Dr. Komanapalli noted Plaintiff transferred easily 

from her chair to the examination table and sat comfortably. 

Tr. 273. Plaintiff was able to walk to the examination room 

without difficulty, to perform finger-to-nose coordination 

exercises, and to perform heel-to-knee and heel-to-toe transfers. 

Tr. 270. Plaintiff's muscle strength was five out of five in her 

upper and lower extremities. Tr. 270-71. Dr. Komanapalli noted 

"significant evidence of poor effort and inconsistencies" during 

his examination. Tr. 273. 

The ALJ noted the record did not establish there had been 

any significant change in Plaintiff's condition or in the 

objective findings since earlier administrative proceedings. For 

example, a December 2006 MRI of Plaintiff's lumbar spine showed 

only mild degenerative changes and mild foraminal narrowing. 

12 - OPINION AND ORDER 

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Tr. 1172. 

In September 2007 Plaintiff's treating physician, Julie 

Paquette, M.D., reported Plaintiff was frustrated with the test 

results that did not indicate any connective tissue disease. 

Tr. 759. Plaintiff "demand[ed] that more tests be done," but 

Dr. Paquette explained she had "exhausted the tests and referral 

to specialists to evaluate [Plaintiff's] complaints." Tr. 759. 

Dr. Paquette suggested Plaintiff find another primary-care 

provider to take over her medical care if she "wish[ed) to pursue 

further work up." Tr. 7 59. 

In November 2007 Plaintiff was seen by Normy Chiou, M.D. 

Plaintiff reported her neck pain improved 50% and she "functions 

well," but she needed a refill of Percocet. Dr. Chiou noted 

Plaintiff had normal gait and station. Tr. 705. Dr. Chiou, 

however, described Plaintiff as a "difficult historian easily 

distracts self to mention multiple physical sensations and refers 

back to history and previous tests." Tr. 705. 

In April 2008 Christopher Ginocchio, M.D., evaluated 

Plaintiff. Plaintiff reported lightheadedness, dizziness, poor 

balance, back pain, right-leg pain, and headaches. Dr. Ginocchio 

noted "very slight weakness" in Plaintiff's neurologic 

examination, but he did not find any evidence of nerve damage and 

concluded the slight weakness "did not represent an underlying 

neurologic issue." Tr. 695. 

13 - OPINION AND ORDER 

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Dr. Ginocchio noted Plaintiff had a normal lumbar MRI and a 

negative straight-leg raise. Dr. Ginocchio recommended 

conservative treatment of physical therapy and use of antiinflammatories. 

On October 23, 2008, Karen Campbell, treating Nurse 

Practitioner, noted Plaintiff arrived with "federal papers for 

loan forgiveness." Tr. 679. Plaintiff advised N.P. Campbell 

that "[s]he feels like she is with the wrong provider if I will 

not sign papers to forgive her loans." Tr. 679. N.P. Campbell, 

however, reported she was '[u]nable to sign a federal form 

stating disability and loan forgiveness." Tr. 680. 

In June 2009 Plaintiff underwent an MRI of her brain. The 

results were normal and unchanged from a previous MRI. Tr. 1246. 

N.P. Campbell noted in June 2009 that Plaintiff was "tearful and 

very angry" about the denial of her application for SSI. 

Tr. 1246. 

In December 2009 x-rays of Plaintiff's lumbar spine showed 

only mild thoracolumbar scoliosis, multilevel degenerative 

changes, and wedging of the Ll and L2 vertebral bodies related to 

"old compression fractures." Tr. 1318. In August 2011 x-rays of 

Plaintiff's right hip were normal. Tr. 1316. In October 2011 

x-rays of Plaintiff's right foot were also normal. Tr. 1315. 

In January 2012 Plaintiff reported to Nurse Practitioner 

Karen Briggs that she had been doing yoga and pilates and felt 

14 - OPINION AND ORDER 

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that her body was "flared up." Tr. 1227. N.P. Briggs, however, 

found on examination that Plaintiff had only mild tenderness with 

lateral bending and her range of motion was "intact." Tr. 1227. 

On October 5, 2012, N.P. Briggs noted Plaintiff was 

[d]emanding I sign her papers for disability. She 

reports I signed these forms last year. The forms 

have currently changed . . . and appear patient 

must fit the criteria according to the law and 

determined to be disabled. . [S]he has not 

been determined disabled. I therefore could not 

agree to sign the papers for her housing. She 

became very angry and demanded to be transferred 

to another provider. 

Tr. 1224-25. 

In October 2012 Plaintiff established care with N.P. Heather 

Reed. N.P. Reed noted Plaintiff had "normal gait and station" 

and recommended a muscle relaxer for a muscle spasm in her neck. 

Tr. 1217. In January 2013 Plaintiff requested N.P. Reed sign 

"paperwork from the housing authority" to certify Plaintiff as 

disabled. Tr. 1212. N.P. Reed advised Plaintiff that she would 

need "to review the requirements for disability certification" 

and to review Plaintiff's records. Tr. 1213. 

In February 2013 Oleg Maksimov, M.D., examined Plaintiff and 

noted she "ambulat[ed] freely around the room, transfer[red] to 

and from the table without difficulties," and had "no ataxia." 

Tr. 1189. Plaintiff had a normal range of motion and normal 

strength in her lower extremities. Tr. 1189. Dr. Maksimov 

prescribed Neurontin and ordered an MRI of Plaintiff's lumbar 

15 - OPINION AND ORDER 

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spine. 

Plaintiff's March 2013 MRI of her lumbar spine showed 

"moderate degenerative disc disease at L3-L4 where there is mild 

to moderate neural foramina narrowing." Tr. 1337. 

In March 2013 Suzanne Delea, M.D., examined Plaintiff and 

diagnosed her with fibromyalgia. Tr. 1178. Dr. Delea 

recommended "physical therapy with aerobic exercise [, . ] 

cognitive behavioral therapy[, 

good sleep hygiene." Tr. 1181. 

. and] the regular practice of 

Dr. Maksimov examined Plaintiff again in May and June 2013 

and noted Plaintiff "ambulate[d] freely around the room" and had 

normal range of motion and strength in her extremities. 

Tr. 1197, 1201. 

On May 23, 2013, Dr. Ginocchio examined Plaintiff again and 

noted Plaintiff's cranial nerves were grossly intact. Tr. 1340. 

Dr. Ginocchio noted Plaintiff had "good strength of upper and 

lower extremities"; her muscles had "normal bulk and tone"; her 

gait had "normal base, arm swing, an stride"; and she had "good 

heel, toe and tandem walking." Tr. 1340. Dr. Ginocchio did not 

note any tremor, and Plaintiff's straight-leg raise was negative. 

Tr. 1341. Dr. Ginocchio stated Plaintiff's overall neurological 

examination was "rather unremarkable." Tr. 1341. He did not 

find any evidence of significant neurological compromise to 

suggest radiculopathy and did not "feel . . further neuro-imaging 

16 - OPINION AND ORDER 

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[was) indicated." Tr. 1341. Dr. Ginocchio recommended physical 

therapy and pain-management of Plaintiff's fibromyalgia. 

Tr. 1341. 

An ALJ may consider the medical evidence as a relevant 

factor when determining a claimant's credibility. Rollins v. 

Massanari, 261 F.3d 853, 857 (9th Cir. 2001). An ALJ may also 

rely on the lack of objective medical evidence of limitations to 

discredit a claimant's testimony. 

613 F.3d 1217, 1225 (9ili Cir. 2010) 

Turner v. Comm'r of Soc. Sec., 

The ALJ noted Plaintiff's testimony "concerning the 

intensity, persistence and limiting effects of [her) symptoms" 

was inconsistent with her activities of daily living. For 

example, the ALJ noted Plaintiff was able to live alone 

independently, to perform selfcare and personal hygiene, and to 

drive a vehicle. The ALJ also noted Plaintiff talks with friends 

and family on the telephone daily; visits with friends once a 

week; grocery shops; does mechanical work on her car; watches 

television; prepares meals; attends yoga and pilates classes; and 

performs household chores such as vacuuming once a week, taking 

out the trash, cleaning her apartment, and doing laundry. 

Tr. 204, 465, 1091-92, 1096, 1099, 1227, 1346. Although 

Plaintiff's activities do not necessarily indicate her ability to 

perform work activities, they are inconsistent with her alleged 

level of impairment and support the ALJ's adverse inference as to 

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her credibility. 

Accordingly, on this record the Court concludes the ALJ did 

not err when he partially rejected Plaintiff's testimony because 

he provided clear and convincing reasons supported by substantial 

evidence in the record for doing so. 

II. The ALJ did not err when he did not give significant weight 

to the lay-witness testimony and statements of Evelyn Burbee 

and Phyllis Dean. 

Lay testimony regarding a claimant's symptoms is competent 

evidence that the ALJ must consider unless he "expressly 

determines to disregard such testimony and gives reasons germane 

to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511 

(9th Cir. 2001). See also Merrill ex rel. Merrill v. Apfel, 224 

F.3d 1083, 1085 (9th Cir. 2000) (" [A]n ALJ, in determining a 

claimant's disability, must give full consideration to the 

testimony of friends and family members."). The ALJ's reasons 

for rejecting lay-witness testimony must also be "specific." 

Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006). When "the 

ALJ's error lies in a failure to properly discuss competent lay 

testimony favorable to the claimant, a reviewing court cannot 

consider the error harmless unless it can confidently conclude 

that no reasonable ALJ, when fully crediting the testimony, could 

have reached a different disability determination." Stout, 454 

F.3d at 1056. 

Plaintiff's mother, Evelyn Burbee, testified at the November 

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2013 hearing that she stays with Plaintiff every week for three 

or four days. Burbee testified she helps Plaintiff with "heavy 

cleaning," moving furniture, cooking, and washing dishes. 

Tr. 1370. Burbee stated Plaintiff does things in ten-to-fifteen 

minute increments and then lies down for thirty-to-sixty minutes. 

Tr. 1371. Plaintiff does chores and other activities but cannot 

do "anything all at once." Tr. 1372. Burbee stated there are 

days when Plaintiff does not do anything and is in bed for twoto-three days. Tr. 1373. 

Phyllis Dean provided a statement on September 18, 2009, in 

which she noted she sees Plaintiff at least once per week. 

Tr. 928. Dean stated Plaintiff's anxiety has become worse 

because of her health problems and her financial situation. 

Plaintiff complains to Dean "much more about pain in her lower 

back, and how much worse it is." Tr. 928. Dean noted Plaintiff 

goes grocery shopping, but only makes small purchases because she 

cannot lift "very much." Plaintiff gets tired even after sitting 

for a few hours. Dean noted Plaintiff "manages her personal 

hygiene, does some housekeeping, and cooks for herself." 

Tr. 928. 

The ALJ did not give significant weight to the testimony and 

statements of Burbee and Dean on the ground that the "objective 

medical evidence fails to contain findings that would support the 

extent of the pain complaints and related limitations" described 

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by Burbee and Dean. Tr. 1101. The ALJ noted again that the 

record reflects Plaintiff's gait and extremity strength have been 

consistently normal, x-rays and MRis have reflected only mild-tomoderate issues, and Plaintiff reported improvement with 

treatment. The ALJ also noted Burbee and Dean relied on 

Plaintiff's subjective reports and presentation, which the ALJ 

has found were not fully credible. 

The Court concludes on this record that the ALJ did not err 

when he did not give significant weight to the testimony and 

statements of lay-witnesses Burbee and Dean because the ALJ 

provided specific reasons germane to the witnesses for doing so. 

III. The ALJ did not err when he assessed Plaintiff's RFC. 

Plaintiff asserts the ALJ erred when he did not reassess 

Plaintiff's RFC, but instead adopted the RFC finding from the 

2004 decision. The ALJ, however, conducted a thorough 

examination and evaluation of the record and concluded it "fails 

to show any significant change in [Plaintiff's] condition since 

the [2009] decision." Tr. 1097. 

Plaintiff notes she was diagnosed with fibromyalgia in 2013, 

which was not diagnosed in 2004. According to Plaintiff, 

therefore, the ALJ should have reached a different conclusion in 

his assessment of her RFC. The ALJ, however, explained: 

Although a diagnosis of fibromyalgia has been 

confirmed by a rheumatologist, [Plaintiff's] pain 

complaints and reported symptoms have remained the 

same, as have the objective findings, which have 

20 - OPINION AND ORDER 

Case 3:15-cv-01982-BR Document 16 Filed 01/30/17 Page 20 of 21
been largely unremarkable and primarily limited to 

subjective reports of tenderness and limitation of 

motion. Significantly, [Plaintiff] has 

consistently had normal gait and strength, 

negative straight leg raise, and no evidence of 

focal deficit. 

Tr. 1097. In addition, Plaintiff fails to identify any specific 

limitations that the ALJ should have included in her RFC. 

On this record the Court concludes the ALJ did not merely 

adopt the RFC from the 2004 decision regarding Plaintiff's 

limitations and he did not err in his assessment of Plaintiff's 

RFC. 

CONCLUSION 

For these reasons, the Court AFFIRMS the decision of the 

Commissioner and DISMISSES this matter. 

IT IS SO ORDERED. 

DATED this 27th day of January, 2017. 

ANNA J. BROWN 

United States District Judge 

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