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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MICHELLE MARIE DELAPLAIN, No. 2:15-cv-02439-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER OF SOCIAL 

SECURITY ADMINISTRATION,

Defendant.

Tim Wilborn

Wilborn Law Office, P.C.

P.O. Box 370578

Las Vegas, NV 89137

Attorney for Plaintiff

Janice E. Hebert

Assistant United States Attorney

U.S. Attorney’s Office, District of Oregon

1000 SW Third Avenue, Suite 600

Portland, OR 97204

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Sarah Moum

Social Security Administration 

Office of the General Counsel

701 Fifth Avenue, Suite 2900 M/S 221A

Seattle, WA 98104

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Michelle Delaplain brings this action for judicial review of the Commissioner’s 

final decision denying her application for Supplemental Security Income (SSI) under Title XVI 

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

Security Act. This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 

1382(c) (3)). The Commissioner’s decision is affirmed.

PROCEDURAL BACKGROUND

Plaintiff applied for SSI and DIB on May 17, 2011, alleging an onset date of February 20, 

2008. Tr. 196-204.

1 Her application was denied initially and on reconsideration. Tr. 76, 110. On 

April 14, 2014, Plaintiff appeared, with counsel, for a hearing before an Administrative Law

Judge (ALJ). Tr. 32-53. On April 16, 2014, the ALJ found Plaintiff not disabled. Tr. 26. The 

Appeals Council denied review. Tr. 1-6. 

FACTUAL BACKGROUND

Plaintiff alleges disability based on fibromyalgia, pain, degenerative arthritis, anxiety, 

and depression. Tr. 38, 221. Plaintiff was 40 years old at the time of the administrative hearing. 

Tr. 37. Plaintiff completed the eleventh grade and has previous work experience as a customer 

service representative, an insurance agent, a receptionist, and an auto parts clerk. Tr. 49. 

 1 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative record, 

filed herein as Docket No. 12. 

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SEQUENTIAL DISABILITY ANALYSIS

A claimant is disabled if unable 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). 

Disability claims are evaluated according to a five-step procedure. See, e.g., Valentine v. 

Comm’r, 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving 

disability. Id.

In the first step, the Commissioner determines whether a claimant is engaged in 

“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 

140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines 

whether the claimant has a “medically severe impairment or combination of impairments.” 

Yuckert, 482 U.S. 137 at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is 

not disabled.

In step three, the Commissioner determines whether the impairment meets or equals “one 

of a number of listed impairments that the [Commissioner] acknowledges are so severe as to 

preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 

416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner 

proceeds to step four. Yuckert, 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any 

impairment(s), has the residual functional capacity to perform “past relevant work.” 20 C.F.R. §§ 

404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot 

perform past relevant work, the burden shifts to the Commissioner. In step five, the 

Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 

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141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden 

and proves that the claimant is able to perform other work which exists in the national economy, 

the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

THE ALJ’S DECISION

At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful 

activity since February 20, 2008, the alleged onset date. Tr. 18. Next, at steps two and three, the 

ALJ determined that Plaintiff has the following severe impairments: degenerative disc disease of 

the lumbar spine, fibromyalgia, obesity, anxiety, status post left carpal tunnel release, lateral 

epicondylitis of the right elbow, and a rotator cuff syndrome of the left shoulder. Tr. 19. 

However, the ALJ determined that Plaintiff’s impairments do not meet or medically equal the 

severity of a listed impairment. Id. At step four, the ALJ concluded that Plaintiff has the residual 

functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) and § 

416.967(b), “except she is further limited to no more than frequent grasping, handling, and 

fingering on the left, and to no more than occasional overhead reaching bilaterally.” Tr. 20. “She 

is also limited to simple, repetitive, routine tasks requiring no more than occasional interaction 

with supervisors, co-workers, and the general public.” Id. The ALJ concluded that Plaintiff is

unable to perform any past relevant work. Tr. 25. However, at step five the ALJ found that there 

are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such 

as electronics worker, assembler of electrical accessories, and basket filler. Tr. 26. Thus, the ALJ 

concluded that Plaintiff is not disabled. Id.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner’s decision if the Commissioner 

applied proper legal standards and the findings are supported by substantial evidence in the 

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record. 42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 

2004). “Substantial evidence” means “more than a mere scintilla, but less than preponderance.”

Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. 

Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” Id.

The court must weigh the evidence that supports and detracts from the ALJ’s conclusion. 

Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 

715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the 

Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see 

also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the 

evidence are insignificant if the Commissioner’s interpretation is a rational reading. Id.; see also 

Batson, 359 F.3d at 1193. However, the court cannot not rely upon reasoning the ALJ did not 

assert in affirming the ALJ’s findings. Bray, 554 F.3d at 1225-26 (citing SEC v. Chenery Corp., 

332 U.S. 194, 196 (1947)).

DISCUSSION

Plaintiff contends that the ALJ erred by (1) concluding that Plaintiff’s impairments do not 

equal any of the listed impairments; (2) discounting the opinion of treating physician Dr. Tyne; 

(3) discounting Plaintiff’s testimony; and (4) discounting the testimony of lay witness Ms. 

Hoagland. According to Plaintiff, the ALJ’s errors render the ALJ’s residual functional capacity 

(RFC) assessment and hypothetical posed to the Vocational Expert (VE) invalid.

The Court affirms the ALJ’s decision to discount the opinion of Dr. Tyne and the 

testimony of Plaintiff and Ms. Hoagland. Thus, Plaintiff’s argument that the combination of her 

impairments meets two listed impairments fails. Similarly, there is no need for this Court to 

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reach Plaintiff’s arguments regarding the RFC and the hypothetical posed to the VE, because 

there is no indication that the ALJ erred in his determination of Plaintiff’s impairments and 

limitations. In short, Plaintiff’s arguments fail.

I. Listed Impairments

Plaintiff contends that the ALJ erred in concluding, at step three, that her combination of 

impairments does not medically equal the severity of one of the listed impairments in 20 C.F.R. 

Part 404, Subpart P, Appendix 1. According to Plaintiff, the ALJ erred because Plaintiff’s 

fibromyalgia, in combination with Plaintiff’s other impairments, equals Listing 14.09D, 

inflammatory arthritis; and the mental impairment listing for anxiety disorders, Listing 12.06. 

The claimant has the initial burden of proving that an impairment meets or equals a 

Listing. See Sullivan v. Zebley, 493 U.S. 521, 530–33 (1990). At step three of the sequential 

evaluation process, the ALJ must evaluate the claimant's impairments to see if they meet or 

medically equal those in the Listings. See § 404.1520(d); Tackett v. Apfel, 180 F.3d 1094, 1098 

(9th Cir. 1999). The List describes the characteristics of each impairment. The description 

includes the “symptoms, signs and laboratory findings” that make up the characteristics of each 

listed impairment. 20 C.F.R. § 404.1525. To meet a listed impairment, a claimant must establish 

that he or she meets each characteristic of a listed impairment relevant to his or her claim.

Tackett, 180 F.3d at 1099. Listed impairments are those that are “so severe that they are 

irrebuttably presumed disabling, without any specific finding as to the claimant's ability to 

perform his past relevant work or any other jobs.” Lester v. Chater, 81 F.3d 821, 828 (9th Cir. 

1995).

An ALJ “must evaluate the relevant evidence before concluding that a claimant's 

impairments do not meet or equal a listed impairment.” Lewis v. Apfel, 236 F.3d 503, 512 (9th 

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Cir. 2001). “A boilerplate finding is insufficient to support a conclusion that a claimant's 

impairment does not do so.” Id. The ALJ need not, however, “state why a claimant failed to 

satisfy every different section of the listing of impairments.” Gonzalez v. Sullivan, 914 F.2d 

1197, 1201 (9th Cir. 1990) (finding that ALJ did not err in failing to state what evidence 

supported conclusion that claimant's impairments did not satisfy Listing). An ALJ's decision that 

a plaintiff did not meet a Listing must be upheld if it was supported by “substantial evidence.” 

See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006).

Plaintiff’s argument depends upon a finding that the ALJ erred in discounting the 

opinions and testimony given by Plaintiff, her friend, Crystal Hoagland; and her treating 

physician, Dr. Tyne. See Pl.’s Br. 14-15. Plaintiff contends that the opinions and testimony 

support a degree of limitation that, when combined with evidence of fibromyalgia and Plaintiff’s 

other impairments, is medically equivalent to Listings 14.09D and 12.06.

However, as discussed below, this Court affirms the ALJ’s decision to discount the 

weight assigned to the testimony of Plaintiff and Ms. Hoagland, and the opinion of Dr. Tyne. In 

light of that affirmance, Plaintiff is left with “no theory, plausible or otherwise” or evidence as to 

how her combined impairments equaled a listed impairment. See Lewis, 236 F.3d at 514 (holding 

that the ALJ's failure to consider equivalence was not reversible error because the claimant did 

not offer any theory, plausible or otherwise, as to how his impairments combined to equal a 

listing impairment); see also Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (“An ALJ is 

not required to discuss the combined effects of a claimant's impairments or compare them to any 

listing in an equivalency determination, unless the claimant presents evidence in an effort to 

establish equivalence.”). The ALJ’s failure to consider Plaintiff’s impairments collectively is not 

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error when Plaintiff did not set forth any evidence to support the diagnosis and finding of a listed 

impairment. Burch, 400 F. 3d at 683. 

II. Treating Physician Dr. Tyne

Plaintiff argues that the ALJ erred by rejecting treating provider Dr. Kari Tyne’s opinion. 

There are three types of medical opinions in social security cases: those from treating, 

examining, and non-examining doctors. Lester, 81 F.3d at 830. The medical opinion of a 

claimant's treating physician is entitled to “special weight” because “he is employed to cure and 

has a greater opportunity to know and observe the patient as an individual.” Rodriguez v. Bowen, 

876 F.2d 759, 761 (9th Cir. 1989) (citation omitted). The ALJ may reject the uncontradicted 

opinion of a treating or examining physician by providing clear and convincing reasons 

supported by substantial evidence in the record. See Lester, 81 F.3d at 830-31; Andrews, 53 F.3d 

at 1043.

If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an 

ALJ may only reject it by providing specific and legitimate reasons that are supported by 

substantial evidence. Barnhart, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31). “The ALJ 

can meet this burden by setting out a detailed and thorough summary of the facts and conflicting 

clinical evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 

881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). Further, an ALJ may reject a physician’s 

opinion if it conflicts with the physician’s other findings. Tommasetti v. Astrue, 533 F.3d 1035, 

1041 (9th Cir. 2008). Although the contrary opinion of a non-treating medical expert does not 

alone constitute a specific, legitimate reason for rejecting a treating or examining physician’s 

opinion, it may constitute substantial evidence when it is consistent with other independent 

evidence in the record. Magallanes, 881 F.2d at 752.

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Dr. Tyne began treating Plaintiff on May 31, 2012. Tr. 458. Plaintiff had sought out a 

new primary care provider because she did not feel she was getting the proper treatment for her 

fibromyalgia. Id. Dr. Tyne’s treatment notes from Plaintiff’s initial visit state that Plaintiff’s 

biggest concern was tingling in both of her arms, from her shoulders down, and that she did not 

have pain or numbness. Id.2

Less than a month later, in June of 2012, Dr. Tyne filled out a one-page “Functional 

Capacity Questionnaire,” in which she listed Plaintiff’s impairments as fibromyalgia and 

lumbosacral spondylosis. Tr. 536. When asked about Plaintiff’s ability to sit, stand, and walk in 

an eight-hour workday, Dr. Tyne opined that Plaintiff could only do each activity for “0-2” 

hours. Id. Dr. Tyne indicated that Plaintiff could occasionally lift less than 10 pounds, rarely lift 

10 pounds, and never lift 20 pounds or more. Id. Dr. Tyne checked “Frequently,” when asked 

how often during a typical workday would Plaintiff’s experience of pain be severe enough to 

interfere with attention and concentration needed to perform simple work tasks. Id. Dr. Tyne 

identified Plaintiff as having the following “signs and symptoms”: impaired sleep, depression, 

and muscle weakness. Id. Finally, Dr. Tyne stated that she anticipated Plaintiff’s impairments or 

treatment would cause her to be absent from work more than four days per month. Id.

In November of 2012, Dr. Tyne wrote a letter supporting the need for Plaintiff to have a 

“live in caregiver.” Tr. 731. Dr. Tyne wrote that Plaintiff was “unable to bath[e], clean, prepare 

healthy meals, pay for bills, and take care of other general household responsibilities without 

assistance[.]” Id.

The ALJ provided three reasons to give “little weight” to Dr. Tyne’s opinions: (1) the 

June 2012 opinion was submitted as a pre-printed form and was unaccompanied by any medical 

 2 As Plaintiff notes, the record may be incomplete because it appears that Dr. Tyne’s treatment note may 

have continued on to another page. See Pl. Reply 10; Tr. 458.

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rationale; (2) her opinions conflicted with Plaintiff’s daily activities; and (3) her opinions

conflicted with more recent treatment notes. The ALJ’s reasons are specific and legitimate, and 

they are supported by substantial evidence.

3 See Barnhart, 427 F.3d at 1216. Thus, the Court

affirms that ALJ’s decision to discount the weight given to Dr. Tyne’s opinions.

A. June 2012 Opinion

Unlike the opinions in the Ninth Circuit case cited by Plaintiff, Garrison v. Colvin, Dr. 

Tyne’s opinion was given after less than a month of treatment and is unsupported by any 

treatment notes. See Garrison v. Colvin, 759 F. 3d 995, 1013 (9th Cir. 2014) (explaining that a 

check-box form may be entitled to weight if it is supported by medical records); see also Molina 

v. Astrue, 674 F. 3d 1104, 1111 (9th Cir. 2012) (affirming decision to reject check-off reports 

that do not contain any explanation of the bases of their conclusions); Scheck v. Barnhart, 357 

F.3d 697, 702 (7th Cir. 2004) (“It would be exceedingly illogical to credit a doctor's opinion 

because he is more likely to have a detailed and longitudinal view of the claimant's impairments 

when in fact, there is no detail or longitudinal view.”)(emphasis removed). Thus, the ALJ 

reasonably discounted Dr. Tyne’s June 2012 opinion.

B. Activities of Daily Living

Inconsistencies between a doctor’s opinion and a claimant’s activities of daily living may 

constitute substantial evidence to discount the doctor’s opinion. Morgan v. Comm'r of Soc. Sec. 

Admin., 169 F.3d 595, 601–02 (9th Cir.1999) (ALJ permissibly rejected treating physician's 

opinion when it conflicted with plaintiff's activities); see also Fisher v. Astrue, 429 F. App’x. 

 3 Because Dr. Tyne’s assessed limitations are contradicted by the other five medical opinions in the 

record, the ALJ was only required to provide specific and legitimate reasons. See Tr. 72-73, 104-05, 106-

07, 443-44, 452.

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649, 652 (9th Cir. 2011) (conflict between doctor's opinion and claimant's daily activities was 

specific and legitimate reason to discount opinion).

However, here, the ALJ erroneously found that Dr. Tyne’s opinions were inconsistent 

with Plaintiff’s reported activities of daily living. This case is unlike Rollins v. Massanari, 261 

F.3d 853 (9th Cir. 2001), which Defendant cites in support of its arguments. In Rollins, the Court 

upheld the ALJ’s decision to discount a doctor’s opinion because the doctor's “restrictions appear 

to be inconsistent with the level of activity that [plaintiff] engaged in by maintaining a household 

and raising two young children, with no significant assistance from her ex husband.” 261 F. 3d at 

856. Here, the ALJ cited the following daily activities: light household chores, working with 

horses4

, caring for her young daughter, going on occasional shopping trips, occasionally using a 

computer, spending time with her boyfriend, and watching television or movies. The Court 

agrees with Plaintiff that none of these activities contradict Dr. Tyne’s opinion regarding 

Plaintiff’s ability to lift, sit, stand, concentrate, or work. 

C. Treatment Notes

The ALJ found that Dr. Tyne’s opinions were inconsistent with her own treatment notes 

and the notes of examining physician Marc Wagner, M.D. “A conflict between treatment notes 

and a treating provider's opinions may constitute an adequate reason to discredit the opinions of a 

treating physician[.]” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014).

The ALJ points to treatment notes that indicate that Plaintiff exhibits full range of motion 

and normal motor strength. Tr. 686-87. The ALJ also notes that, as of March 2013, Plaintiff 

demonstrated “pain-free motion of the major joints” and a “steady and nonantalgic gait.” Tr. 539. 

Furthermore, Dr. Wagner “rated [Plaintiff’s] overall motor strength at 5/5—even in the 

 4 Plaintiff testified that she has her mother’s horse at her home. Tr. 42. According to Plaintiff, her 

daughter is the primary person who takes care of the horse. Id.

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lumbosacral myotomes” and “[t]here were not reported deficits in[Plaintiff’s] sensation or 

reflexes.” Tr. 24 (quoting Tr. 539). 

Plaintiff argues that the ALJ had a pervasive misunderstanding of fibromyalgia and 

incorrectly demanded objective evidence to support Plaintiff’s allegations of pain. However, 

Plaintiff’s argument and the cases she cites focus whether the ALJ erred in discounting 

Plaintiff’s testimony, as opposed to Dr. Tyne’s opinion. 

Plaintiff’s citation to Benecke v. Barnhart, 379 F. 3d 587 (9th Cir. 2004) is also 

inapposite. In Benecke, the Ninth Circuit found that “the ALJ erred in discounting the opinions 

of Benecke's treating physicians, relying on his disbelief of Benecke's symptom testimony as 

well as his misunderstanding of fibromyalgia.” Id. at 594. The ALJ erred by “effectively 

requir[ing] ‘objective’ evidence for a disease that eludes such measurement.” Id. Here, unlike in 

Benecke, the ALJ discounted Dr. Tyne’s opinion, not because it lacked objective evidence to 

support a diagnosis of fibromyalgia, but because Dr. Tyne’s assessed restrictions contradicted 

her own treatment notes and the notes of Dr. Wagner. This is a proper reason to discount Dr. 

Tyne’s opinion.

While the ALJ erred in his discussion of Plaintiff’s daily activities, he nevertheless 

provides specific and legitimate reasons, supported by substantial evidence, to discount Dr. 

Tyne’s opinion. Thus, the Court upholds the ALJ’s decision. See Rollins, 261 F.3d at 857 

(upholding ALJ’s “reasonable interpretation” as long as it is supported by substantial evidence

because it is not the Court’s “role to second-guess it”). 

III. Plaintiff’s Credibility

Plaintiff contends that the ALJ failed to provide clear and convincing reasons for 

rejecting her testimony about her impairments and their limiting effects. In assessing the 

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credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the 

ALJ engages in a two-step analysis. 20 C.F.R. § 404.1529. First, the ALJ determines whether 

there is objective medical evidence of an underlying impairment that could reasonably be 

expected to produce some degree of symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 

1996). If such evidence exists, and barring affirmative evidence of malingering, the ALJ must 

give clear and convincing reasons for discrediting the claimant's testimony regarding the severity 

of the symptoms. Id. at 1284; see also Brown-Hunter v. Colvin, 806 F.3d 487, 492–93 (9th Cir. 

2015). If the record contains affirmative evidence of malingering, the ALJ need only provide 

specific and legitimate reasons for an adverse credibility finding. Morgan v. Comm'r, 169 F.3d 

595, 599 (9th Cir. 1999).

The ALJ may consider many factors in weighing a claimant’s credibility, including: (1) 

ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior 

inconsistent statements concerning the symptoms, and other testimony by the claimant that 

appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or 

to follow a prescribed course of treatment; and (3) the claimant’s daily activities. Tommasetti, 

533 F.3d at 1035. In addition, conflicts between a claimant’s testimony and the objective medical 

evidence in the record can undermine a claimant's credibility. Morgan, 169 F.3d at 600. Where 

the ALJ's credibility findings are supported by substantial evidence in the record, the reviewing 

court “may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 

2002). However, a general assertion that plaintiff 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. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); see also Morgan, 169 F.3d at 

599.

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Plaintiff testified that she last worked full-time in February of 2008. Tr. 38. After that 

time, she tried to work from home as an insurance agent, but she was unable due to her lower 

back pain and fibromyalgia. Id. In February of 2009, Plaintiff lost her job after missing many 

days due to pain and additional days due to her pony’s illness. Id. at 39.

In 2011, Plaintiff tried again to work as an insurance agent. Tr. 40. However, her anxiety 

due to dealing with multi-line phones, her pain, and the side effects of her medication made it 

impossible to continue working. Id. Since then, Plaintiff has not worked. Id.

Plaintiff testified that she “hurt[s] constantly . . . even with [her] medications.” Tr. 41. 

The medications make Plaintiff drowsy and she cannot sit for very long. Id. Plaintiff lies down a 

lot and uses a heating pad every morning. Id. According to Plaintiff, “[m]y doctor told me that 

we are at a stalemate with my medications. There is nothing else that she can do.” Id.

Plaintiff lives at home with a live-in caregiver and her nine year old daughter. Tr. 42. Her 

boyfriend does not live with her. Id. Plaintiff’s daughter is the person who primarily cares for the 

horse they have at the house. Id. Plaintiff does not drive, nor is she involved with her daughter’s 

school activities. Id. Plaintiff states that she does not “go anywhere,” including church. Tr. 44. 

She only goes out of the house about once a month to go shopping. Tr. 45. Plaintiff testified that 

her anxiety keeps her from going anywhere. Id.

Plaintiff’s caregiver and daughter take care of the upkeep of the house, chores, laundry, 

and meal preparation. Tr. 43. Plaintiff’s boyfriend takes care of the house’s landscaping. Id.

Occasionally, Plaintiff reads a book; however, her carpal tunnel makes her arms go to sleep. Tr. 

45. While Plaintiff’s carpal tunnel surgery helped with pain, she still has pain in her arms. Id.

The ALJ found Plaintiff’s testimony “not entirely credible” for the following reasons: (1)

medical evidence from prior to Plaintiff’s alleged onset date does not suggest a disability and 

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medical records contemporaneous to the onset date do not reveal any sudden decline in 

Plaintiff’s health; (2) the objective medical evidence is not consistent with a disabling pain 

condition; (3) Plaintiff had dealt with back symptoms for years in which her earnings had 

demonstrated substantial gainful activity; (4) and Plaintiff provided questionable effort in her 

examination with Dr. Henderson, which raises suspicion of secondary gain. The Court affirms 

the ALJ’s finding.

A. Medical Evidence From the Time of Plaintiff’s Alleged Onset Date

Plaintiff’s alleged onset date is February 20, 2008. Tr. 16. The ALJ noted that, prior to 

this date, the medical records provide evidence of Plaintiff’s mental health symptoms. Tr. 22. 

However, apart from the mental health symptoms, Plaintiff described her health as “very good.” 

Tr. 301. In June of 2008, Plaintiff fell off her horse and suffered a right heel injury; however, 

“there is no record of any lingering problems with mobility.” Tr. 22. The ALJ found that 

Plaintiff’s ability to mount and ride a horse suggested she did not have a debilitating pain 

condition. Tr. 22. The record does not appear to have treatment notes from 2009. 

Plaintiff does not challenge this reason that the ALJ provided to discount her testimony. 

The Court agrees with the ALJ that the lack of medical evidence during the time surrounding 

Plaintiff’s alleged onset date, as well as a lack of any indication that Plaintiff’s conditions 

changed after the onset date, is a valid reason to discount her testimony.

B. Objective Medical Evidence

The ALJ further discounted Plaintiff’s testimony because the objective medical evidence 

is not consistent with a disabling pain condition. The ALJ noted the following from Plaintiff’s 

treatment notes: normal motor strength in all extremities, negative straight-leg raise testing, no 

evidence of spinal stenosis or nerve root impingement, ability to walk on heels and toes without 

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distress, mildly decreased lateral flexion at the waist, and negative imaging of the shoulders. Tr. 

22, 23.

Plaintiff points to Benecke v. Barnhart, 379 F.3d 587, 596 (9th Cir. 2004), for the 

proposition that it is error to require objective evidence of fibromyalgia, because it is a disease 

that “eludes such measurement.” As the Ninth Circuit has explained, fibromyalgia “is poorlyunderstood within much of the medical community,” it is “diagnosed entirely on the basis of 

patients' reports of pain and other symptoms,” and “there are no laboratory tests to confirm the 

diagnosis.” Benecke, 379 F.3d at 590; see also Rounds v. Comm'r, 807 F.3d 996, 1000 n.3 (9th 

Cir. 2015).

In a recent unpublished decision, the Ninth Circuit confirmed that an ALJ errs by 

discounting a claimant’s “‘subjective complaints and limitations’ [due to fibromyalgia] as 

‘simply out of proportion to and not corroborated by the objective medical evidence.’” HamiltonCarneal v. Colvin, No. 14-15398, 2016 WL 6648694, at *1 (9th Cir. Nov. 10, 2016). Here, 

however, the ALJ provided several valid reasons for discounting Plaintiff’s testimony. Unlike 

Hamilton-Carneal, the absence of objective medical evidence was not the central factor in the 

ALJ’s credibility determination. Therefore, even if the ALJ erred as to this reason for 

discounting Plaintiff’s testimony, such error was not harmful.

C. Long-Standing Symptoms

The ALJ noted that Plaintiff had dealt with her same complained-of “back symptoms” 

during periods in which her earnings had demonstrated substantial gainful activity (SGA). Tr. 23. 

According to the ALJ, this suggested that Plaintiff’s impairments did not necessarily preclude 

full-time employment. Id.

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An ALJ may discount a claimant’s testimony if there is substantial evidence to support 

the conclusion that the claimant was capable of working with the same impairment prior to filing 

for benefits. See Gregory v. Bowen, 844 F.2d 664, 667 (9th Cir. 1988) (noting that “substantial 

evidence” indicated that the claimant's condition “had remained constant for a number of years 

and that her back problems had not prevented her from working over that time.”); see also Wikoff 

v. Astrue, 388 F. App'x 735, 737 (9th Cir. 2010) (upholding ALJ’s conclusion that claimant was 

able to perform substantial gainful activities while suffering mental impairments as severe as 

those she suffered later, after her alleged onset date).

Plaintiff reported to her doctor on July 12, 2011 that she had an eight-year history of 

lower back pain and generalized muscle pain. Tr. 309. The ALJ wrote: “Notably, the claimant 

reported that she had dealt with these symptoms for several years, which presumably included 

periods in which her earnings demonstrated substantial gainful activity.” Tr. 23 (emphasis 

added).

Plaintiff does not dispute that she had income at SGA-levels during the prior eight-year 

period. Instead, Plaintiff challenges the ALJ’s use of the word “presumably” in the ALJ’s 

decision. Plaintiff’s argument that the ALJ should not have made such a presumption fails 

because the record demonstrates that Plaintiff did, in fact, engage in SGA during the periods at 

issue. See Tr. 23, 205, 309. The ALJ reasonably drew inferences from the record regarding 

Plaintiff’s back problems and her ability to earn SGA prior to filing for disability. See Batson v. 

Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.2004) (“[T]he Commissioner's 

findings are upheld if supported by inferences reasonably drawn from the record, and if evidence 

exists to support more than one rational interpretation, we must defer to the Commissioner's 

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decision.” (citation omitted)). Therefore, the Court affirms this reason to discount Plaintiff’s 

testimony.

D. Secondary Gain

The ALJ further discounted Plaintiff’s testimony because the notes of consultative 

physician Michael Henderson, D.O., regarding Plaintiff’s “questionable effort” during testing 

raised “suspicion of secondary gain.” Tr. 23. Plaintiff argues that the suspicion of secondary gain 

motivation does not, alone, constitute substantial evidence supporting the ALJ’s findings. 

Dr. Henderson wrote in his chart notes that Plaintiff’s “effort did not seem full” when 

testing knee flexion and extension. Tr. 443. Furthermore, Plaintiff’s symptoms were 

“nonanatomic for back pain” and “there did not seem to be full effort.” Tr. 443. The ALJ found 

that such observations undermined the credibility of Plaintiff’s subjective pain complaints. Tr. 

23. 

Plaintiff argues that the ALJ’s finding improperly uses objective evidence to undermine 

Plaintiff’s allegations. The Court fails to find support for this argument. Instead, the ALJ uses 

evidence of Plaintiff’s questionable effort, not the objective test results, to discount her 

credibility. Such analysis is permissible. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 

2002) (discounting credibility of claimant who failed to give maximum or consistent effort 

during physical capacity evaluations); see also Corso v. Colvin, No. 3:13-CV-250-AC, 2014 WL 

950029, at *5 (D. Or. Mar. 11, 2014) (upholding ALJ’s conclusion that the plaintiff’s 

inconsistent effort on exams undermined his credibility). 

Plaintiff also argues that a claimant’s desire to obtain benefits may not be used to 

discredit her testimony, as that would result in no claimant ever being found credible. The Court 

agrees. However, the ALJ did not discount Plaintiff’s testimony due to her desire to receive 

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19 - OPINION & ORDER

benefits. Instead, the ALJ properly considered Dr. Henderson’s assessment of Plaintiff’s effort 

during the consultative exam. In sum, the ALJ properly considered Plaintiff’s effort as a specific 

and legitimate reason to discount the weight awarded to her testimony. 

IV. Lay Witness Testimony

Plaintiff argues that the ALJ erred by failing to fully credit the statements of Plaintiff’s 

friend, Crystal Hoagland. “Lay testimony as to a claimant's symptoms or how an impairment 

affects the claimant's ability to work is competent evidence that the ALJ must take into account.” 

Molina, 674 F.3d at 1114. The ALJ must give reasons “germane to the witness” when 

discounting the testimony of lay witnesses. Valentine, 574 F.3d at 694.

In a July 2011 Third Party Function Report, Ms. Hoagland stated that Plaintiff is unable 

to work because of her pain and mental health issues. Tr. 263. At that point, Ms. Hoagland had 

known Plaintiff for about a year and nine months. Id. As to Plaintiff’s personal care, Ms. 

Hoagland opined that her fibromyalgia affects “anything she did,” such as dressing, bathing, 

shaving, eating, and caring for her hair. Tr. 264. Ms. Hoagland stated that Plaintiff “doesn’t go 

anywhere on a regular basis” and that fibromyalgia, anxiety, and depression causes issues in all 

aspects of her life. Tr. 268. 

The ALJ gave Mr. Maerz’s report only “partial weight.” The ALJ wrote:

[Ms. Hoagland’s] assessment approximately coincides with health issues that ultimately 

led to the claimant’s hysterectomy in August 2011. The claimant’s physical functioning

subsequently improved, to the point Dr. Henderson could not identify any significant 

functional limitations by March 2012. Accordingly, the undersigned gives only partial 

weight to Ms. Hoagland’s observations, to the extent they are reasonably consistent with 

the medical and other evidence cited above. 

Tr. 25. 

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The Court affirms the ALJ’s decision to discount Ms. Hoagland’s opinion to the extent it 

is inconsistent with medical evidence in the record, such as Dr. Henderson’s opinion. See Bayliss 

v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (rejecting portions of lay witness testimony as 

inconsistent with medical evidence). More importantly, even if the ALJ erred, such error was 

harmless. See Molina, 674 F.3d at 1115. Where lay witness testimony does not describe any 

limitations not already described by the claimant, and the ALJ's well-supported reasons for 

rejecting the claimant's testimony apply equally well to the lay witness testimony, any error by 

the ALJ is inconsequential. Id. at 1117. Here, the reasons the ALJ discounted Plaintiff’s 

testimony “apply equally well” to Ms. Hoagland’s testimony. 

V. RFC and VE Hypothetical

Plaintiff argues that the ALJ’s RFC finding and the hypothetical posed to the VE were 

erroneous because they failed to include limitations assessed by Dr. Tyne and supported by the 

testimony of Plaintiff and Ms. Hoagland. Because the Court affirms the ALJ’s decision to 

discount such opinions and testimony, there is no error in the ALJ’s RFC or hypothetical.

CONCLUSION

The Court affirms the Commissioner’s decision.

IT IS SO ORDERED.

Dated this ________ day of __________________________, 2017

_______________________________________________

MARCO A. HERNÁNDEZ

United States District Judge

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