IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DEBORAH FARMER, 

Plaintiff, 

v. 

NANCY A. BERRYHILL, Acting 

Commissioner of Social Security, 

Defendant. 

AIKEN, District Judge: 

EUGENE DIVISION 

Case No. 3:16-cv-00340-AA 

OPINION AND ORDER 

Plaintiff Deborah Farmer brings this action pursuant to the Social Security Act ("Act"), 

42 U.S.C. § 405(g) and § 1383(c)(3), to obtain judicial review of a final decision of the 

Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiffs 

applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income 

("SSI"). For the reasons set forth below, the Commissioner's decision is AFFIRMED. 

Page 1 - OPINION AND ORDER 
BACKGROUND 

On Febrnary 9, 2012, plaintiff applied for DIB. She applied for SSI benefits the 

following day. Plaintiff alleged disability beginning February 19, 2009, due to depression with 

anxiety, PTSD, diabetes, obesity, asthma, migraines, and polycystic ovarian syndrome. 

Plaintiff's applications were denied initially and upon reconsideration. On May 23, 2014, 

plaintiff appeared at a hearing before an ALJ. The ALJ found plaintiff not disabled in a written 

decision issued June 19, 2014. After the Appeals Council denied review, plaintiff filed the 

present complaint in this Court. 

STANDARD OF REVIEW 

The district court must affitm the Commissioner's decision if it is based upon proper 

legal standards and the findings are suppotied by substantial evidence in the record. 42 U.S.C. § 

405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than 

a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind 

might accept as adequate to suppoti a conclusion." Gutierrez v. Comm 'r Soc. Sec., 740 F.3d 

519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The comi must weigh "both the 

evidence that supports and the evidence that detracts from the ALJ's conclusion." i\1ayes v. 

Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one 

inte1pretation but the Commissioner's decision is rational, the Commissioner must be affirmed, 

because "the court may not substitute its judgment for that of the Commissioner." Edlund v. 

lvlassanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 

COMMISSIONER'S DECISION 

The initial burden of proof rests upon the plaintiff to establish disability. Howard v. 

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the plaintiff must 

Page 2 - OPINION AND ORDER 
demonstrate an "inability to engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected ... to last for a continuous 

period of not less than 12 months[.]" 42 U.S.C. § 423( d)(l )(A). 

The Commissioner has established a five-step sequential process for determining whether 

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4). 

At step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the 

alleged disability onset date. 20 C.F.R. §§ 404.1520(a)(4)(i), (b). At step two, the ALJ found 

plaintiff had the following severe impainnents: "depression with anxiety; post-traumatic stress 

disorder; diabetes mellitus; obesity; asthma; gastroesophageal reflux disease; migraine 

headaches; and polycystic ovarian syndrome." Tr. 12; 20 C.F.R. §§ 404.1520 et seq. and 

416.921 et seq. 

At step three, the ALJ determined plaintiff does not have an impairment or combination 

of impairments that has significantly limited (or is expected to significantly limit) the ability to 

perfo1m basic work-related activities for 12 consecutive months and therefore does not have a 

severe impairment or combination of impairments. 20 C.F.R. §§ 404.1521 et seq. and 416.921 et 

seq. 

The ALJ then assessed plaintiffs residual functional capacity ("RFC"). 20 C.F.R. § 

404.1520(e); id § 416.920(e). The ALJ then assessed plaintiff residual functional capacity 

("RFC") as follows: 

Tr. 19. 

If I found the claimant's mental impaitment to be severe, the claimant would have the 

residual function capacity to perform a full range of work at all exertional levels but with 

the following nonextertional limitations: only occasional, brief, superficial interaction 

with co-worker and the public; and no over the shoulder supervision. 

Page 3 - OPINION AND ORDER 
After considering plaintiffs RFC, the ALJ concluded plaintiff could not perfo1m any of 

her past relevant work. 20 C.F.R. §§ 404.1565 and 416.965. At step five, however, the ALJ 

found that plaintiff could perform work existing in the national economy; specifically, plaintiff 

could work as a hand packager, janitorial or cleanup worker, or a laundry worker. 20 C.F.R. §§ 

404.1569, 404.1569(a), 416.969, and 416.969(a). Accordingly, the ALJ found plaintiff not 

disabled and denied her applications for benefits. 

DISCUSSION 

Plaintiff contends the ALJ committed reversible error at six places in the five-step 

analysis. First, plaintiff asserts the ALJ failed to give clear and convincing reasons for 

discounting plaintiffs testimony, and ened in rejecting the lay testimony of plaintiffs sister. 

Plaintiff finiher avers that the ALJ ened at step two of the analysis, when it found that none of 

plaintiffs medically dete1minable impairments were severe. Fourth, plaintiff states that the ALJ 

eITed in the RFC assessment. Fifth, plaintiff argues that the Commissioner did not meet his 

burden of proving that plaintiff retains the ability to perfo1m work in the national economy. 

Finally, plaintiff assigns en·or to the ALJ's failure to independently develop the record regarding 

plaintiffs mental impairments. 

I. Rejection of Plaintiff's Testimony 

Plaintiff first contends that the ALJ e1Ted by not giving clear and convincing reasons for 

rejecting plaintiffs testimony. When a claimant's medically documented impairments 

reasonably could be expected to produce some degree of the symptoms complained of, and the 

record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's 

testimony about the severity of . . . symptoms only by offering specific, clear and convincing 

reasons for doing so." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). A general 

Page 4 - OPINION AND ORDER 
assertion that the claimant is not credible is insufficient; the ALJ must "state which ... testimony 

is not credible and what evidence suggests the complaints are not credible." Dodrill v. Sha/ala, 

12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to pe1mit 

the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's 

testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). If the "ALJ's credibility 

finding is supported by substantial evidence in the record, [the comt] may not engage in secondguessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 

Here, the ALJ gives specific reasons for not giving full credibility to plaintiffs testimony 

conceming the intensity, persistence, and limiting effects of her symptoms. The ALJ's primary 

reason for only paitially crediting plaintiffs testimony is that evidence of plaintiffs daily 

activities shows fewer limitations than plaintiff alleges. Specifically, the ALJ noted testimony 

from plaintiff which indicated that she attends church bible study three times a week and 

coordinates one of the sessions. She drives herself to church, the bank, and the grocery store. 

Despite her social phobia plaintiff goes door to door for her church. Further, plaintiff testified 

that she could do various chores such as cooking, some cleaning, and paying bills. She shops, 

uses a computer, and cares for her cat. Finally the ALJ observed that in 2012, plaintiff cared for 

her grandniece, for which she was paid $300 monthly. 

Plaintiff further assigns enor to the ALJ's statement that plaintiff had not attended 

counseling. Plaintiff reports several reasons for not accessing mental health treatment, including 

not wanting to attend appointments where she knows other people, temporary gaps in health 

insurance coverage, and periodically struggling with anxiety about leaving her house in general. 

Not accessing treatment for her self-reported mental health issues during the times she was 

covered by health insurance is a permissible consideration under Social Security rulings: 

Page 5 - OPINION AND ORDER 
"Factors that an ALJ may consider in weighing a claimant's credibility include reputation for 

truthfolness, inconsistencies in testimony or between testimony and conduct, daily activities, and 

'unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course 

of treatment.' Fair, 885 F.2d at 603; see also Thomas, 278 F.3d at 958-59." Orn v. Astrue, 495 

F.3d 625, 636 (9th Cir. 2007). It is reasonable for the ALJ to conclude that when plaintiff 

regularly accesses treatment for other symptoms and reports a variety of weekly activities such 

as bible studies and general errands, the persistent lack of mental health treatment is 

"inadequately explained," and therefore a relevant consideration bearing on plaintiffs 

credibility. Id. 

Plaintiff further avers that the ALJ failed to consider that plaintiffs reported daily 

activities are not continuous, and that her symptoms may vary in intensity, persistence, or 

limitations. However, the record shows that the ALJ did consider that plaintiffs activities are 

only done "sometimes," "occasionally," or "at times," and that she reports that she "often" needs 

assistance, and explicitly stated that this evidence was considered in the ALJ's decision. Tr. 14. 

Thus, the ALJ expressly considered that plaintiffs rep01ied daily activities are not continuous. 

II. Consideration of Lay Evidence 

Plaintiff secondly asse1is that the ALJ elTed in its consideration of the lay witness 

testimony of her sister, Ms. Farmer. In general, "lay witness testimony as to a claimant's 

symptoms or how an impairment affects ability to work is competent evidence ... and therefore 

cannot be disregarded without comment." Nguyen v. Cater, 100 F.3d 1462, 1467 (9th Cir. 1996) 

(emphasis omitted). This is because "[a]n eyewitness can often tell whether someone is 

suffering or merely malingering," pmiicularly if the witness "view[ s] the claimant on a daily 

basis[.]" Dodrill, 12 F.3d at 919. An ALJ may discount lay witness testimony only by providing 

Page 6 - OPINION AND ORDER 
reasons that are "ge1mane" to each witness. Id. However, the ALJ need not "discuss every 

witness's testimony on an individualized, witness-by-witness basis. Rather, if the ALJ gives 

ge1mane reasons for rejecting testimony by one witness, the ALJ need only point to those 

reasons when rejecting similar testimony by a different witness." 1'.10/ina v. Astrue, 674 F.3d 

1104, 1114 (9th Cir. 2012) (citation omitted). 

In its repo1i, the ALJ took Ms. Farmer's testimony into consideration, and gave it "some 

weight." Tr. 18. However, the ALJ declined to give it full credibility, pointing to both plaintiffs 

weekly activities and the medical evidence, which it determined showed fewer limitations than 

those described by Ms. Farmer. Tr. 18. For instance, Ms. Farmer wrote that plaintiffs symptoms 

were so severe that standing and sleeping were difficult. Tr. 18. However, plaintiffs selfreported activities did not conoborate such significant impahment, and no medical evidence in 

the record indicated such limitation. Tr. 18. Plaintiff argues primarily that because the lay 

witness testimony is consistent with plaintiffs testimony, the lay witness testimony should be 

credited. However, the ALJ did not disregard the lay witness testimony without comment, but 

rather considered it as is required under the Act. 

III. Step Two: Finding Plaintiff's Impairments Not Severe 

Plaintiff states that the ALJ erred by not finding any of plaintiffs medically determinable 

impairments severe. Plaintiffs argument is that even if she did not suffer from a single severe 

condition, there was evidence in the record showing her combination of impairments prevented 

her from engaging in gainful employment on a sustained basis. Physically, plaintiff points to the 

several migraines that she experiences every month, mild peripheral neuropathy in her left foot, 

very mild diabetic retinopathy impacting her vision, periodic unexplained nausea and mild body 

pains, and blood sugar fluctuations. Psychologically, plaintiff points to a variety of problems 

Page 7 - OPINION AND ORDER 
caused by anxiety. Plaintiff argues that the ALJ must consider the combined effect of all of these 

non-severe symptoms and conditions when determining the severity of her impairment. 

While the ALJ' s decision does not contain an explicit discussion of the interactions 

between plaintiffs impairments or symptoms, the ALJ noted several times that it considered 

plaintiffs impairments both individually and in combination. This is sufficient to show that the 

ALJ considered plaintiffs impairments in combination. See Sa111ples v. Com111 1r of Soc. Sec. 

Ad111in., 466 F. App'x 584, 586 (9th Cir. 2012). ("The ALJ was required to consider [claimant's] 

impairments in combination tlu·oughout the disability determination process and detennine if her 

impairments met or equaled one of the listed impairments .... The record reflects that the ALJ did 

so, even if he did not discuss explicitly the interaction between her physical impairments and her 

mental impairments. The ALJ not only noted that he was required to consider her impairments in 

combination, but stated explicitly in two places that he had done so." (internal citation omitted)) 

IV. RFC Assessment 

Plaintiff assigns error to the ALJ's RFC assessment in that the ALJ specifically failed to 

address the consequences of plaintiffs migraines, dizziness, vision problems, diminished 

sensations in her feet, and various problems associated with her anxiety. Although the ALJ did 

not find any of plaintiffs impairments severe, the ALJ assessed that even if "the claimant's 

mental impairments were severe, the claimant would have the residual functional capacity to 

perform a full range of work at all exertional levels but with the following nonexertional 

limitations: only occasional, brief, superficial interaction with co-workers and the public; and no 

over the shoulder supervision." Tr. 19. 

The RFC is the maximum a claimant can do despite her limitations. 20 C.F.R. § 

404.1545. In determining the RFC, the ALJ must consider limitations imposed by all of a 

Page 8 - OPINION AND ORDER 
claimant's impaitments, even those that are not severe, and evaluate "all of the relevant medical 

and other evidence," including the claimant's testimony. SSR 96-8p, available at 1996 WL 

374184. Only limitations supported by substantial evidence must be incorporated into the RFC. 

Osenbrockv. Apfel, 240F.3d1157, 1163-65 (9th Cir. 2001). 

The ALJ' s decision considered each of the impairments and conditions that plaintiff 

argues the ALJ failed to address. The ALJ noted that plaintiff repmis two or three migraines per 

month. The report also states that plaintiff was admitted to the emergency room several times in 

2012 after siblings repotied that she was dizzy and confused. The ALJ also considered plaintiffs 

"very mild retinopathy" in her right eye, noting that her doctor did not assess any limitations 

from this condition. Tr. 15. The repoti also stated that plaintiff describes episodes of "slipping 

out of reality," and other anxiety-related symptoms, and that she has been treated with antianxiety medications. Tr. 14. 

The ALJ' s decision does not specifically mention diminished sensation in plaintiffs feet. 

However, this is not automatically error. The ALJ need not mention every possible symptom in 

its RFC assessment, and only limitations supported by substantial evidence must be incorporated 

into the RFC. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). The ALJ noted that 

there was no medical evidence of "diabetes-related limitations, such as neuropathy or kidney 

disease." Tr. 15. The ALJ also considered plaintiffs reported activities using her feet, including 

weekly walking, chores, errands, and driving. 

Evidence of diminished sensation in plaintiffs foot consists of a 2012 emergency room 

report which states that plaintiff experienced "[t]ingling on the top of her feet especially while 

walking," and had daily sensory changes in her feet. Tr. 385. In 2013, plaintiffs doctor repotied 

that she had mildly diminished sensation in her left foot. Tr. 3539. In neither case did the doctor 

Page 9 - OPINION AND ORDER 
note any limitations in walking or movement, nor recommend any treatment or follow-up 

regarding the foot sensations. Thus, there is not substantial evidence in the record of limitations 

from diminished sensation in plaintiffs feet that would necessitate its inclusion in the RFC. 

V. Plaintiff's Ability to Pe1form Work in the National Economy 

At step five of the analysis, the burden of proof shifts to the Commissioner to "identify 

specific jobs existing in substantial numbers in the national economy that [a] claimant can 

perform despite [her] limitations." Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995); see 

also 20 C.F.R. §§ 404.1520(g), 416.920(g); 20 C.F.R. §§ 404.1566, 416.966. In so doing, the 

ALJ must consider the claimant's RFC as applied to the Dictionary of Occupational Titles 

("DOT"), and the vocational factors of age, education, and work experience. Id 

Plaintiff argues that the Commissioner failed to meet his burden of proving at step five 

that plaintiff retains the ability to perfonn other work in the national economy. Plaintiff assigns 

error specifically to the ALJ's failure to include some of plaintiffs self-reported limitations 

based on migraines, anxiety, vision changes, periods of vertigo, periodic pain from several 

causes, and sensory changes in her feet, stating that the hypothetical posed to the vocational 

expe1i (the "VE") to determine whether the plaintiff can perform other work in the national 

economy must consider all limitations supported by the record. Id 

The ALJ, however, gave only partial credibility to plaintiffs testimony about the limiting 

effects of her symptoms. The hypothetical posed to the VE need not include limitations which 

the ALJ has found to be non-credible or accorded diminished evidentiary weight, so long as the 

ALJ makes specific findings explaining why the limitations were not probative, and therefore 

omitted. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (citing Batson v. 

Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1195-96 (9th Cir. 2004)). 

Page 10 - OPINION AND ORDER 
Because I have found that the ALJ did not e11' in finding plaintiffs testimony only 

partially credible, plaintiffs argument here necessarily fails as a reason for assigning e!1'or to the 

hypothetical posed to the VE and the resulting step five determination that plaintiff would be 

able to perform the requirements of several occupations existing in the national economy. 

VI. Further Developing the Record 

Plaintiff argues that the ALJ erred in failing to develop the record regarding plaintiffs 

mental health symptoms. Plaintiff avers that information in the record is insufficient to 

"dete1mine the extent of Ms. Fmmer's mental impairment ... " which therefore triggers the ALJ's 

duty to develop the record fmiher. Pl.'s Br. in Support of Comp!. for Review (doc 31 at 20). 

Plaintiff argues that ALJ should have order consultative psychological examination. 

The claimant bears the burden of proving the existence or extent of an impairment, such 

that the ALJ's limited "duty to fmiher develop the record is triggered only when there is 

ambiguous evidence or when the record is inadequate to allow for proper evaluation of the 

evidence." Mayes v. i\1assanari, 276 F.3d 453, 460 (9th Cir. 2001). A claimant's burden to 

prove their disability " ... requires the presentation of 'complete and detailed objective medical 

reports of her condition from licensed medical professionals.' Id" Edlund v. l'vfassanari, 253 

F.3d 1152, 1157 (9th Cir. 2001). 

An ALJ has a duty to fully and fairly develop the record to the extent necessary to assure 

that the claimant's interests are considered. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 

2001). However, "[n]o authority suggests that the regulations require the ALJ to continue 

developing the record until disability is established; the regulations require only that the ALJ 

assist the claimant in developing a complete record." Hampton v. Astrue, 2009 WL 2351703 at 

*11 (D. Or. July 27, 2009) (citing BmPen, 482 U.S. at 146 (1987)). 

Page 11 - OPINION AND ORDER 
Here, plaintiff does not point to any ambiguous or contradictory evidence in the record. 

Instead, plaintiffs argument rests on the alleged lack of evidence sufficient to determine the 

extent of plaintiffs mental impainnent. However, the record contains evidence that was 

sufficient for the ALJ to find that plaintiff had several medically dete1minable mental 

impairments including depression with anxiety and post-traumatic stress disorder. The ALJ's 

decision considers mental health diagnoses based on reports from three physicians from 2008 

through 2013. The ALJ also discussed evidence in the record that plaintiffs doctor prescribed 

her anti-depression medication in 2010, which she voluntarily stopped taking when she no longer 

needed it. The ALJ also cited plaintiffs doctor's prescription of anti-anxiety medication in 2013. 

Additionally, the ALJ looked at evidence in the record relevant to her level of impairment 

in the areas of daily living, social functioning, concentration, persistence, pace, and episodes of 

decompensation, citing specific evidence in the record showing her level of functioning in each 

area. Further, the record contains evidence that in 2012, the state reviewing physician evaluated 

plaintiffs mental health by reviewing plaintiffs medical and non-medical records, and 

examining plaintiff. The ALJ found based on the evidence in the record that plaintiffs mental 

impairments caused mild to no actual impairment in the above functional areas, and thereby 

concluded that her mental impairment is non-severe. Id. at 18, 20 CFR 404.1520a (d)(l) and 

416.920a (d)(l). 

Even if plaintiff had pointed to specific ambiguities in the record, in the absence of 

harmful error we defer to the ALJ' s interpretation: "[T]he ALJ is the final arbiter with respect to 

resolving ambiguities in the medical evidence." Tommasetti v. Astrue, 533 F.3d 1035, 1037 (9th 

Cir. 2008) (citing Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995)). The record here 

contained sufficient information about plaintiffs mental impairments by which the ALJ was able 

Page 12 - OPINION AND ORDER 
to make its dete1minations, citing specific evidence for its findings. For that reason, the record 

was adequate for proper analysis of the evidence, and the ALJ had no further duty to develop the 

record. 

CONCLUSION 

The Commissioner's decision is AFFIRMED, and this case is DISMISSED. 

IT IS SO ORDERED. 

Dated this :J.S;' day of January 2018. 

Ann Aiken 

United States District Judge 

Page 13 - OPINION AND ORDER