IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ALEXANDRA JACOB, 3:15-CV-01414-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

MERRILL SCHNEIDER

Schneider Kerr Law Offices

P.O. Box 14490

Portland, OR 97293

(503) 255-9092

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

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 1 of 18
DAVID MORADO

Regional Chief Counsel

JORDAN D. GODDARD 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-2733 

Attorneys for Defendant

BROWN, Judge.

Plaintiff Alexandra Jacob 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 SSI on March 30, 2012,

and alleged a disability onset date of October 27, 1990. 

Tr. 157.1 Her application was denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held a

hearing on November 7, 2013. Tr. 31-52. At the hearing

1

 Citations to the official transcript of record filed by

the Commissioner on September 10, 2015, are referred to as "Tr."

2 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 2 of 18
Plaintiff and a vocational expert (VE) testified. Plaintiff was

represented by an attorney. On November 19, 2013, the ALJ issued

an opinion in which he found Plaintiff is not disabled and,

therefore, is not entitled to benefits. Tr. 18-30. On 

June 1, 2015, that decision became the final decision of the

Commissioner when the Appeals Council denied Plaintiff's request

for review. Tr. 1-6. See Sims v. Apfel, 530 U.S. 103, 106-07

(2000). 

BACKGROUND

Plaintiff was born on October 27, 1990, and was 23 years old

at the time of the hearing. Tr. 157. Plaintiff graduated high

school. Tr. 21. Plaintiff does not have any past relevant work

experience. Tr. 24. 

Plaintiff alleges disability due to hydrocephalus. Tr. 171. 

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. 23-24.

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

3 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 3 of 18
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). 

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

4 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 4 of 18
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

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 (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. 

5 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 5 of 18
§ 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.

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.

§ 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). 

6 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 6 of 18
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

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 March 30, 2012,

application date. Tr. 20.

At Step Two the ALJ found Plaintiff has the severe

impairments of a history of hydrocephalus, “personality change

due to hydrocephalus,” and a cognitive disorder. Tr. 20. 

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

7 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 7 of 18
has the RFC to perform a full range of work at all exertional

levels, 

but with the following nonexertional limitations: 

(1) [she] is fully capable of learning,

remembering, and performing 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 and few work place changes; 

(2) [she] is limited to occasional contact with

the public; and (3) [she] will perform optimally

in a quiet work environment where there are few

distractions.

Tr. 22.

At Step Four the ALJ found Plaintiff does not have any past

relevant work experience. Tr. 24. 

At Step Five the ALJ found Plaintiff could perform jobs that

exist in significant numbers in the national economy. Tr. 25. 

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION

Plaintiff contends the ALJ erred when he (1) “improperly

used Plaintiff’s activities of daily living against her”; 

(2) partially rejected the statements of Plaintiff’s mother,

Mavis Jacob; and (3) improperly failed to include in Plaintiff’s

RFC all of the limitations contained in the opinion of examining

psychologist Robinann Cogburn, Ph.D.

8 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 8 of 18
I. The ALJ properly evaluated Plaintiff’s activities of daily

living.

Plaintiff contends the ALJ erred when he “[improperly]

evaluated Plaintiff’s activities of daily living.” 

The ALJ found Plaintiff has a mild restriction in her

activities of daily living. The ALJ noted Plaintiff reported in

her May 2012 Adult Function Report that she is able to do all of

her personal care and grooming without help, but she needs her

mother to remind her to do it. Tr. 186. Plaintiff also reported

she does housework such as laundry and cleaning; watches

television; rides her bike; reads; exercises; listens to music;

and uses the computer to use Facebook, to read email, and to

apply for jobs. Tr. 188-89. Plaintiff noted she attended Adult

Basic Education classes three days per week, spends time with

friends at least once a week, goes to church, goes to the mall,

and gets along with authority figures. Tr. 187-90. The ALJ also

noted the description of Plaintiff’s daily activities noted by

Dr. Cogburn in her March 2013 psychodiagnostic evaluation

including watching television, caring for her young niece and

nephew, using the computer, feeding her dog and cat, doing

laundry, and helping her sister with her homework. Tr. 24, 435. 

The ALJ also noted Dr. Cogburn’s report that Plaintiff is able to

use public transportation and to shop independently. Tr. 435. 

At the hearing Plaintiff testified she sometimes cooks food for

her younger sister when she is taking care of her although

9 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 9 of 18
Plaintiff noted she “tend[s]” to text her mother often to ask her

what she would like Plaintiff to make and how to do it. Tr. 37. 

Plaintiff also testified, however, that she can make barbequed

chicken in the oven easily because she has done it before. 

Tr. 37.

The ALJ found Plaintiff is “capable of performing work

within the established residual functional capacity.” Tr. 24. 

The ALJ relied on the fact that Plaintiff testified she is

babysitting her sister from 11:30 a.m. to 9:30 p.m. as well as

occasionally babysitting her young niece and nephew. Tr. 24. 

The ALJ also noted Plaintiff attends Adult Education Classes

three days per week, obtained a modified diploma from high

school, attended eight terms at Portland City College taking

remedial classes, uses Tri-Met, was a cashier at a food cart at

her school, uses the computer, and does volunteer work at her

church. The ALJ concluded these activities of daily living were

consistent with his evaluation of Plaintiff’s RFC, which included

limitations to learning, remembering, and performing simple,

routine, and repetitive tasks; following simple work

instructions; and performing the simple, routine, and repetitive

tasks in a routine, predictable, and low-stress work environment. 

The Ninth Circuit has made clear that when a claimant’s

reports about her activities of daily living are subject to more

than one interpretation, the ALJ’s interpretation is entitled to

10 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 10 of 18
deference as long as it is reasonable. See, e.g., Rollins v.

Massinari, 261 F.3d 853, 857 (9th Cir. 2001)(“It is true that

[the plaintiff’s] testimony was somewhat equivocal about how

regularly she was able to keep up with all of these activities,

and the ALJ's interpretation of her testimony may not be the only

reasonable one. But it is still a reasonable interpretation and

is supported by substantial evidence; thus, it is not our role to

second-guess it.”).

On this record the Court finds the ALJ’s interpretation of

Plaintiff’s activities of daily living was reasonable and

supported by the evidence. The Court, therefore, concludes the

ALJ did not improperly evaluate Plaintiff’s activities of daily

living.

II. The ALJ did not err when he partially rejected the

statements of Plaintiff’s mother, Mavis Jacob.

Plaintiff contends the ALJ erred when he partially rejected

the May 12, 2012, Adult Function Report provided by Mavis Jacob.

Lay-witness 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."). 

11 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 11 of 18
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). The ALJ, however, may find the nature of a claimant's

"close relationship" with a lay witness undermines her

credibility when the lay witness is "possibly 'influenced by her

desire to help'" the claimant. Greger v. Barnhart, 464 F.3d 968,

973 (9th Cir. 2006). See also Kintner v. Astrue, No. CV-07-

3048-CI, 2008 WL 680201 (E.D. Wash. Mar. 7, 2008)(lay-witness not

"disinterested" or objective due to her close relationship with

the claimant).

In her Report Mavis Jacob indicated Plaintiff becomes

frustrated easily, has to be told what to do every day, and can

only follow one direction at a time. Tr. 176. She noted

Plaintiff cannot “do a list of stuff or follow a list of

directions.” Tr. 176. Mavis Jacob noted Plaintiff takes care of

her pets “begrudgingly,” takes “ABE classes” three days per week,

does laundry with help, cleans her room after being reminded to

do so, talks on the telephone, texts, uses Facebook, goes to

church, and rides her bicycle. Tr. 177-81. She reported she has

“to keep telling [Plaintiff] what to do” because otherwise

Plaintiff “sometimes gets confused” when attempting to follow

instructions. Tr. 181. She noted Plaintiff does not handle

stress well, she “gets flustered [and] cries” and “needs to have

a routine.” Tr. 182.

12 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 12 of 18
The ALJ gave “full consideration” to Mavis Jacob’s report

and found it “generally supports the conclusion that [Plaintiff]

is able to perform at the residual functional capacity” set out

by the ALJ. Tr. 24. The ALJ rejected Mavis Jacob’s statements

to the extent that they “suggest[] . . . [Plaintiff’s]

impairments render her unable to work.” Tr. 24. The ALJ noted

Mavis Jacob’s close relationship with Plaintiff and “desire to

help her, likely influenced her opinion regarding [Plaintiff’s]

abilities.” Tr. 24. The ALJ also noted Plaintiff lives with her

mother, who is also unemployed and, therefore, has a financial

incentive for Plaintiff to receive benefits.

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

when he partially rejected Mavis Jacob’s statements because the

ALJ provided specific reasons germane to the witness for doing

so. 

III. The ALJ did not improperly fail to include in his evaluation

of Plaintiff’s RFC all of the limitations contained in 

Dr. Cogburn’s opinion.

Plaintiff contends the ALJ erred when he improperly failed

to include in Plaintiff’s RFC all of the limitations contained in

the March 2013 opinion of Dr. Cogburn, examining psychologist.

An ALJ may reject an examining physician's opinion when it

is inconsistent with the opinions of other treating or examining

physicians if the ALJ makes "findings setting forth specific,

legitimate reasons for doing so that are based on substantial

13 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 13 of 18
evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957

(9th Cir. 2002)(quoting Magallanes v. Bowen, 881 F.2d 747, 751

(9th Cir. 1989)). When the medical opinion of an examining

physician is uncontroverted, however, the ALJ must give "clear

and convincing reasons" for rejecting it. Thomas, 278 F.3d at

957. See also Lester v. Chater, 81 F.3d 821, 830-32. 

On March 7, 2013, Dr. Cogburn conducted a psychological

evaluation of Plaintiff at the request of the Office of

Vocational Rehabilitation Services. Dr. Cogburn reviewed a

number of Plaintiff’s medical records and administered several

tests to Plaintiff. Dr. Cogburn concluded Plaintiff

presents with prominent symptoms of organic

personality impairment, including pervasive

failure of initiation as well as irritability and

reactivity. Testing reveals deficits in memory,

perceptual reasoning, and executive functions. 

Academic skills are within the expected range. 

Consistent with her organically based apathetic

tendency and deficit in initiation of actions, 

Ms. Jacob has taken few steps toward

self-sufficiency and seems to view her

participation in services as nothing more than

passive compliance with her mother's instructions. 

Although there was no indication of intentional

distortion or impression management, some of her

statements were inconsistent with her records. 

Generally, she seemed to describe herself as

experiencing fewer problems and receiving less

support than is actually the case. This is

consistent with other indications of limited

insight regarding her impairments and needs. 

These factors raise concern that her functional

deficits may be greater than she describes.

Tr. 440. Dr. Cogburn also concluded “it appears likely that

14 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 14 of 18
[Plaintiff] is affected by limitations across all functional

domains.” Tr. 440. Dr. Cogburn included a number of

recommendations including the following:

A supported employment situation would be

appropriate. [Plaintiff] is likely to succeed

most easily when performing highly structured

tasks with close supervision in a quiet

environment with few distractions.

If competitive placement is attempted, [Plaintiff]

is likely to succeed most easily in an occupation

where tasks are highly structured, easily learned,

sequential, and repetitive. She is likely to have

significant difficulty organizing tasks

independently.

She is likely to need repeated instruction and

frequent reminders.

She may benefit from work with a job coach to

learn skills and routines in a work setting. 

Tr. 441.

The ALJ gave significant weight to Dr. Cogburn’s opinion.

Tr. 23. The ALJ, however, noted Dr. Cogburn’s “limitations are

not explained with specificity. Nonetheless, [her] opinion is

generally consistent with the conclusion that [Plaintiff] is

limited to the [RFC] outlined” in the ALJ’s opinion. Tr. 23. 

Plaintiff, nevertheless, asserts the ALJ erred when he

failed to include limitations recommended by Dr. Cogburn in his

assessment of Plaintiff’s RFC. Specifically, Plaintiff alleges

the ALJ’s conclusion as to Plaintiff’s RFC fails to account for

the need for close supervision, Plaintiff’s difficulty in

organizing tasks independently, and Plaintiff’s need for a job

15 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 15 of 18
coach.

A Plaintiff’s RFC is “not the least an individual can do

despite his or her limitations or restricts, but the most.” 

SSR 96-8p at *1 (emphasis in original). Accordingly, courts have

held ALJs do not need to include limitations in a plaintiff’s RFC

that are merely recommendations as opposed to imperatives. See,

e.g., Rounds v. Comm’ Soc. Sec. Admin., 807 F.3d 996, 1006 (9th

Cir. 2015)(The ALJ did not err when he failed to include

recommendations by the plaintiff’s examining psychologist because

they were merely recommendations rather than “specific

imperatives regarding [the plaintiff’s] limitations.”); Valentine

v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 691 (9th Cir. 2009)(The

ALJ did not err when he did not include certain recommendations

of the plaintiff’s examining psychologist in the plaintiff’s RFC

because the psychologist’s “observation about ‘highly routinized,

overlearned tasks with low cognitive demand’ is neither a

diagnosis nor statement of [the plaintiff’s] functional capacity.

It is rather a recommended way for [the plaintiff] to cope with

his PTSD symptoms.”); Litwin v. Colvin, No. C15–1334–JLR–MAT,

2016 WL 487707, at *3 (W.D. Wa. Jan. 15, 2016)(“Dr. Donahue's

opinions regarding Plaintiff's social and adaptation limitations

need not be accounted for in the RFC assessment, because they

were written as recommendations for an optimal work environment,

rather than requirements.”); Glosenger v. Comm’r Soc. Sec.

16 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 16 of 18
Admin., No. 3:12–cv–1774–ST, 2014 WL 1513995, at *6 (D. Or. 

Apr. 16, 2014)(“Dr. Dean's list of accommodations were couched as

mere ‘recommendations,’ which, while useful in determining [the

plaintiff’s] ideal work environment, are distinct from her

functional capacity which the RFC is designed to capture.”). 

Here the limitations that Plaintiff contends the ALJ failed

to include in Plaintiff’s RFC are included in Dr. Cogburn’s

evaluation as “recommendations” rather than as a diagnosis or as

specific functional limitations. In addition, the ALJ accounted

for a number of Dr. Cogburn’s recommendations when he limited

Plaintiff to simple, routine, repetitive work tasks that involve

only “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 and few work place

changes” and noted Plaintiff “will perform optimally in a quiet

work environment where there are few distractions.” Tr. 22.

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

he did not include all of Dr. Cogburn’s recommendations in his

evaluation of Plaintiff’s RFC because the ALJ gave legally

sufficient reasons supported by substantial evidence in the

record for doing so.

17 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 17 of 18
CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 7th day of September, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

18 - OPINION AND ORDER

Case 3:15-cv-01414-BR Document 18 Filed 09/07/16 Page 18 of 18