1 – FINDINGS AND RECOMMENDATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JIMMY DALE MILLER,

Plaintiff, Civ. No. 6:15-CV-02152-JR

v. FINDINGS AND

RECOMMENDATION

NANCY BERRYHILL,

Acting Commissioner of the Social

Security Administration,

Defendant.

_____________________________

RUSSO, Judge:

Plaintiff Jimmy Miller brings this action for judicial review of the final decision of the 

Commissioner of Social Security (“Commissioner”) denying his application for Title II 

Disability Insurance Benefits under the Social Security Act (“Act”). For the reasons set forth 

below, the Commissioner’s decision should be affirmed and this case dismissed.
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PROCEDURAL BACKGROUND

On May 19, 2014, plaintiff applied for Disability Insurance Benefits. Tr. 145-46. His

application was denied initially and upon reconsideration. Tr. 105-09. On May 27, 2015, a 

hearing was held before an Administrative Law Judge (“ALJ”), wherein plaintiff was 

represented by counsel and testified, as did a vocational expert (“VE”). Tr. 39-65. On June 25, 

2015, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 

14-38. After the Appeals Council denied his request for review, plaintiff filed a complaint in this 

Court.1 Tr. 1-4.

STATEMENT OF FACTS

Born on April 20, 1981, plaintiff was 29 years old on the alleged onset date of disability 

and 34 years old at the time of the hearing. Tr. 38, 67. He earned a GED and attended college 

classes. Tr. 61. Plaintiff previously worked in construction and drywall installation. Tr. 32. 

Plaintiff alleges disability as of December 2, 2010, due to anxiety, depression, anger problems, 

suicidal tendencies, nightmares, cold sweats, and chronic pain. Tr. 67, 165, 200. 

STANDARD OF REVIEW

The 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. Hammock v. 

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It 

means such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations 

 1 The record before the Court constitutes over 800 pages, but with multiple incidences of 

duplication. Where evidence occurs in the record more than once, the Court will generally cite to 

the transcript pages on which that information first appears.
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omitted). The court must weigh “both the evidence that supports and detracts from the 

[Commissioner’s] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.1986). Variable 

interpretations of the evidence are insignificant if the Commissioner’s interpretation is rational. 

Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

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

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

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)(1)(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. First, 

the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” 

Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled.

At step two, the Commissioner evaluates whether the claimant has a “medically severe 

impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 

404.1520(c). If the claimant does not have a severe impairment, he is not disabled.

At step three, the Commissioner determines whether the claimant’s impairments, either 

singly or in combination, meet or equal “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 140-41; 20 C.F.R. § 404.1520(d). If so, the claimant is presumptively disabled; if 

not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
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At step four, the Commissioner resolves whether the claimant can still perform “past 

relevant work.” 20 C.F.R. § 404.1520(f). If the claimant can work, he is not disabled; if he 

cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the 

Commissioner must establish that the claimant can perform other work existing in significant 

numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g). 

If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566.

THE ALJ’S FINDINGS

At step one of the five-step sequential evaluation process outlined above, the ALJ found 

that plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 19. 

At step two, the ALJ determined plaintiff had the following medically determinable, severe 

impairments: depression, post-traumatic stress disorder, and varus alignment of the left knee. Id.

At step three, the ALJ found plaintiff’s impairments, either singly or in combination, did not 

meet or equal the requirements of a listed impairment. Tr. 19-21. 

Because he did not establish presumptive disability at step three, the ALJ continued to 

evaluate how plaintiff’s impairments affected his ability to work. The ALJ resolved that plaintiff 

had the residual functional capacity (“RFC”) to perform sedentary work, except that:

The claimant is further limited to no more than occasional kneeling, crouching, 

crawling or occasional climbing of stairs and ramps. The claimant is further 

limited to no more than frequent stooping or balancing, and is precluded from 

climbing ladders, scaffolds and ropes. The claimant is also limited to simple, 

repetitive, routine tasks requiring no more than occasional, brief interaction with 

co-workers. Additionally, the claimant would need to avoid working in an 

environment where there is any direct public contact with the general public.

Tr. 21.
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At step four, the ALJ determined plaintiff was unable to perform his past relevant work.

Tr. 32. At step five, the ALJ found, based on the VE’s testimony, that there exists a significant 

number of jobs in the national and local economy that plaintiff could perform despite his

impairments, such as small parts assembler, optical assembler, and weight tester. Tr. 32-33.

DISCUSSION

Plaintiff argues the ALJ erred by: (1) finding him not fully credible; (2) rejecting the 

Veterans Affairs’ (VA) 100% disability rating; (3) improperly assessing medical evidence from 

Chelsea Brandenburg, LMFT; (4) disregarding the lay witness statement of his sister; and (5) 

rendering an invalid step five finding. Pl.’s Br., pp. 11-12.

I. Plaintiff’s Testimony

Plaintiff asserts the ALJ wrongfully discredited his subjective symptom testimony 

concerning the severity of his impairments. Id. at p. 15. When a claimant has medically 

documented impairments that could reasonably 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. Chater, 80 F.3d 1273, 1281 (9th 

Cir. 1996) (citation omitted). A general 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. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); SSR 16-3p, 

available at 2016 WL 1119029. The reasons proffered must be “sufficiently specific to permit 

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) (internal citation omitted). If the 
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“ALJ’s credibility finding is supported by substantial evidence in the record, [the court] may not 

engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation 

omitted). 

At the hearing, plaintiff testified he is unable to work as the result of an accident that 

occurred during basic training with the National Guard in September 2009. Tr. 45. He alleges

injuries to his knee, hip, shins, feet, and lower back that prevent him from walking without a 

limp, or standing or sitting for long periods of time. Tr. 45-48, 200. As a result, plaintiff “spent a 

couple of years on [his] dad’s couch.” Tr. 46. When the ALJ asked whether plaintiff had sought 

out or applied for work, he answered that he “can’t physically do it.” Tr. 48.

Plaintiff also testified that his anxiety makes him “freak out” such that he cannot breathe

or stop shaking, and his anger “just explodes,” leading him to “get mouthy” and tell others to 

“shut up.” Tr. 55. According to plaintiff, he has “a hard time being out in public” and stays in his 

house “as much as possible,” locking himself in his bedroom when more than one person is 

around. Tr. 53, 56-57. In addition, plaintiff remarked that his depression bars him from working 

because he lacks motivation, concentration, and focus. Tr. 48-49, 57, 200.

After summarizing his hearing testimony, the ALJ determined that plaintiff’s medically 

determinable impairments could reasonably be expected to produce some degree of symptoms, 

but that his statements regarding the extent of those symptoms were not fully credible due to his 

activities of daily living, the lack of corroborating medical evidence, and his tendency to 

exaggerate. Tr. 23-29. Activities of daily living may support an adverse credibility finding when 

they contradict the claimant’s testimony. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 

2012). A lack of corroborating objective medical evidence is another factor the ALJ can 
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consider, although it cannot be the sole basis for discounting a claimant’s testimony. Burch, 400 

F.3d at 681.

Notably, the ALJ discredited plaintiff’s testimony because it was inconsistent with his 

range of activities. Tr. 27. Substantial evidence supports the ALJ’s decision in this regard. For 

instance, plaintiff was physically and mentally capable of going to school and maintaining

employment for a significant period following the alleged onset date of his disability. He

attended community college for three years (from December 2011 to January 2015). Tr. 52, 190, 

202, 544. Plaintiff also worked at least a year and a half at the VA (from December 2011 to June 

2013), sought volunteer positions in November 2013, and volunteered at his child’s school at 

least three times per week in December 2014. Tr. 115, 146, 190, 202, 246, 336, 764. Not only 

did plaintiff carry on these activities for a long duration, he sometimes did so at a high intensity, 

attending college full-time while working 20-25 hours per week. Tr. 301. Although plaintiff 

allegedly lacked motivation and focus, the record suggests he was fairly successful academically.

Tr. 256, 301. Moreover, plaintiff engaged in a variety of activities in and around the house, 

including regular meal preparation, laundry, dog-walking, and cleaning. Tr. 201-03, 210-11. He

left the house regularly and transported himself to various destinations, including frequent 

medical appointments in Roseburg, Oregon, without assistance. Tr. 50, 203, 211, 601.

Other activities further refute plaintiff’s claims of debilitating anxiety and depression. 

Namely, he has been caring for his two nephews and undertook the cumbersome process of 

working with government agencies to adopt them. Tr. 748, 752, 764. He also engaged in 

activities that require him to be in the presence of others and interact, such as attending parent 

teacher conferences and going to the park. Tr. 50-51, 57-58, 203, 211, 764. As the ALJ correctly 
8 – FINDINGS AND RECOMMENDATION

concluded, this evidence belies plaintiff’s hearing statements concerning the extent of his 

physical and mental impairments.

Significantly, plaintiff does not dispute the foregoing facts. Rather, he attempts to cast 

them in a more favorable light, arguing that the ALJ failed to acknowledge his heavy reliance on

his father and brother for assistance parenting, shopping, and carrying out household chores.

Pl.’s Br., pp. 16-17. Plaintiff also emphasizes that he ultimately left both college and his work 

study position. Id. at 17. The mere fact plaintiff struggled with certain activities, however, does 

not indicate plaintiff is disabled. Molina, 674 F.3d at 1113. Further, plaintiff’s alternative 

interpretation of the record does not negate the ALJ’s reasonable interpretation of the record. See

Febach v. Colvin, 580 Fed.Appx. 530, 531 (9th Cir. 2014) (ALJ is not required to accept a 

claimant’s attempt to characterize activities as consistent with disability where those activities 

“could also reasonably suggest” greater functional abilities) (citing Batson v. Comm’r of Soc. 

Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004)).

Moreover, the ALJ found plaintiff’s testimony contradicted the overall medical record. 

Tr. 23. Here, the ALJ thoroughly detailed, over the course of four single-spaced pages, objective 

evidence countering plaintiff’s testimony. For example, imaging of plaintiff’s left knee and legs 

taken immediately after his September 2009 injury were relatively normal. Tr. 44-45, 674. 

Subsequent x-rays were similarly unremarkable. See, e.g., Tr. 251, 378, 383, 674. Other 

examinations revealed no significant strength, motor, sensory, or movement limitations. See,

e.g., Tr. 240-41, 245-46, 383, 479-481, 548, 567, 676-77, 679. While plaintiff testified that

orthopedic specialists recommended knee surgery, the most recent orthopedic chart notes suggest

otherwise. Tr. 46, 241. Specifically, after a March 2010 exam, Mathew Shapiro, M.D., remarked 
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he could not “account anatomically for [plaintiff’s] extreme amount of pain” and thus 

recommended discharging plaintiff without further treatment. Id.

In sum, the ALJ provided clear and convincing reasons, supported by substantial 

evidence, for rejecting plaintiff’s subjective symptom statements. As a result, this Court need not 

discuss all of the reasons provided by the ALJ because at least one legally sufficient reason 

exists. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). 

Therefore, the ALJ’s credibility finding should be affirmed.

II. VA Disability Rating

Plaintiff contends the ALJ erred in rejecting the VA’s 100% disability rating. Pl.’s Br., 

pp. 12-13. The ALJ “must ordinarily give great weight to a VA determination of disability.” 

McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Less weight may be afforded only 

by providing “persuasive, specific, valid reasons for doing so that are supported by the record.”

Id. (citation omitted).

In May 2013, the VA granted plaintiff a 100% service-connected disability, effective 

February 27, 2012, for “major depressive disorder, single episode, severe without psychotic 

features to include panic disorder without agoraphobia as secondary to the service-connected 

disability of left knee strain, and tendinitis to include bilateral shin splints.” Tr. 142. 

The ALJ gave no weight to the VA disability rating for three reasons: (1) it was “at odds” 

with plaintiff’s “reported activities of daily living, as well as his ability to attend college courses 

on a full-time basis”; (2) it failed to “identify [plaintiff’s] specific limitations stemming from 

major depressive disorder”; and (3) the countervailing RFC and VE testimony suggested plaintiff

is capable of working. Tr. 31. 
10 – FINDINGS AND RECOMMENDATION

As discussed above, plaintiff evinced a high level of functioning for several years 

following the alleged onset date of disability. This constitutes a persuasive, specific, and valid 

reason to afford less weight to the disability rating. McCartey, 298 F.3d at 1076. As the ALJ 

reasonably resolved, this evidence undermines the VA’s determination. The ALJ’s decision 

should be affirmed as to this issue.

III. Medical Evidence

Plaintiff next asserts that the ALJ failed to provide a legally sufficient reason, supported 

by substantial evidence, for discrediting the medical opinion of his therapist, Ms. Brandenburg. 

Pl.’s Br., pp. 13-14. While only “acceptable medical sources” can diagnose and establish that a 

medical impairment exists, evidence from “other sources,” including therapists, can help

determine the severity of an impairment and how it affects the claimants’ ability to work. 20 

C.F.R. § 404.1513; SSR 06-03p, available at 2006 WL 2329939. The ALJ must provide a 

germane reason to disregard the opinion of a non-acceptable medical source. Turner v. Comm’r 

of Sec. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010).

In April 2015, Ms. Brandenburg completed a check-the-box form prepared by plaintiff’s 

attorney, in which she indicated plaintiff was “moderately limited” in his ability to: (1) “work in 

coordination with or proximity to others without being distracted by them”; (2) “get along with 

co-workers or peers without distracting them or exhibiting behavioral extremes”; (3) “interact

appropriately with the public”; (4) “complete a normal workday and workweek without 

interruptions from psychologically based symptoms and to perform at a consistent pace without 

an unreasonable length of rest periods”; and (5) “accept instructions and to respond appropriately

to criticism from supervisors.” Tr. 809-11. The ALJ accepted Ms. Brandenburg’s first three
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findings and incorporated them into RFC, limiting plaintiff to no more than occasional, brief 

interactions with co-workers and no direct contact with the public. Tr. 21. 

The ALJ gave little weight to the remainder of Ms. Brandenburg’s opinion because: (1) it 

was at odds with plaintiff’s daily activities; (2) it was inconsistent with her narrative responses

and the overall medical record; (3) it was a “check-box” form provided by plaintiff’s attorney; 

and (4) it “suggest[ed] very little difference between a moderate and marked limitation, and in 

either case [plaintiff was] found to be essentially incapable of performing the particular 

task/function required.” Tr. 30. Inconsistency between a treating provider’s opinion and 

claimant’s daily activities qualifies as a legally sufficient reason to discount that opinion. 

Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Additionally, internal inconsistency 

within a medical report constitutes an adequate reason to afford less weight to that report. Id. at 

1161 (citing Molina, 974 F.3d at 1112-12).

As addressed in Section I, the record is replete with evidence demonstrating plaintiff 

engaged in a wide variety of daily activities. Moreover, the record contains evidence illustrative 

of plaintiff’s ability to accept and understand instructions and respond to criticism. Significantly, 

plaintiff’s employment and academic history demonstrates he is capable of working in 

conjunction with a supervisor. As discussed herein, plaintiff was employed by the VA between 

2011 and 2013. In that time, he had one negative interaction with human resources regarding 

another job opening; that incident did not involve a supervisor and it was unrelated to plaintiff’s 

job performance. Tr. 472. In addition, plaintiff occasionally received negative feedback from his 

professors and nonetheless persevered in school. Tr. 301, 312, 315, 337, 512, 564. Finally, 

plaintiff successfully engaged in a variety of other activities in which he received feedback and 
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directions, like parent teacher conferences, volunteering at his child’s school, and working with 

government agencies to adopt his children. Tr. 50-51, 748, 752, 764. In sum, outside of Ms. 

Brandenburg’s report, the record suggests plaintiff can perform work consistent with the RFC. 

The Court also notes that, as the ALJ found, Ms. Brandenburg’s check-the-box opinion is 

at odds with the narrative portion of her report. Tr. 30. Significantly, Ms. Brandenburg’s 

narrative report was equivocal and expressed uncertainty regarding plaintiff’s work-related 

abilities. See Tr. 807 (remarking plaintiff “may be able to sustain [simple, routine] employment 

if the stress level and number of responsibilities is low, but I’m not sure”); see also Valentine v. 

Comm'r Soc. Sec. Admin., 574 F.3d 685, 691-92 (9th Cir. 2009) (an ALJ is not required to 

incorporate limitations phrased equivocally into the RFC). The ALJ’s evaluation of Ms. 

Brandenburg’s opinion should be affirmed. 

IV. Lay witness testimony

Plaintiff contends the ALJ neglected to provide a germane reason to reject the lay 

testimony of his sister, Teena Freeman. Pl.’s Br., p. 19. Lay testimony regarding a claimant’s 

symptoms or how an impairment affects a claimant’s ability to work is competent evidence that 

an ALJ must consider. Molina, 674 F.3d at 1114 (citation omitted). An ALJ must provide 

“reasons germane to each witness” in order to reject such testimony. Id. (citation and internal 

quotation omitted). 

In May 2014, Ms. Freeman completed a Third-Party Adult Function Report in support of 

plaintiff’s claim. Tr. 208-16. Ms. Freeman reported plaintiff’s physical impairments affect him in 

a variety of areas, including lifting, walking, standing, kneeling, and climbing stairs. Tr. 213. 

According to Ms. Freeman, plaintiff’s physical impairments have psychological effects with 
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regard to memory, sleep, concentration, getting along with others, anger, stress, patience, and 

“extreme anxiety and mood changes.” Tr. 208-09, 213-14. Ms. Freeman nonetheless stated 

plaintiff could engage in personal care and household work. Tr. 209-10. Ms. Freeman also 

indicated plaintiff was independent in his ability to go out, drive, shop, and manage his finances. 

Tr. 211. She reported plaintiff was going to school, though he had a “hard time” due to his 

inability to concentrate. He was able to also visit with friends, despite becoming “short 

tempered,” “very anti social,” and having a “hard time connecting.” Id.

The ALJ first denoted that Ms. Freeman’s “report essentially reiterates the claimant’s 

allegations of ‘disability.’” Tr. 31. He assigned little weight to her lay statement due to plaintiff’s 

wide range of activities and the overall medical record. Id. As addressed previously, plaintiff’s 

activities of daily living and the lack of corroborating medical evidence constitute clear and 

convincing reasons, supported by substantial evidence, to reject his subjective symptom 

statements, and these reasons are equally applicable to the lay witness testimony. See Valentine, 

574 F.3d at 694 (lay witness testimony may be disregarded on same basis as claimant’s 

discredited subjective reports). The ALJ’s decision should be affirmed as to this issue.

V. RFC and Step Five Finding

Plaintiff argues the ALJ’s RFC and step five finding are erroneous because they do not 

adequately account for the limitations described in his testimony, the VA disability rating, or the 

reports of Ms. Brandenburg or Ms. Freeman. The RFC is the most a claimant can do despite his 

limitations. 20 C.F.R. § 404.1545. In determining the RFC, the ALJ must consider limitations 

imposed by all of a claimant’s impairments, even those that are not severe, and evaluate “all of 

the relevant medical and other evidence,” including the claimant’s testimony. SSR 96-
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s/Jolie A. Russo

JOLIE A. RUSSO

United States Magistrate Judge

8p, available at 1996 WL 374184. Only limitations supported by substantial evidence must be 

incorporated into the RFC and, by extension, the dispositive hypothetical question posed to the 

VE. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001).

As discussed herein, the ALJ appropriately weighed the evidence from plaintiff, the VA, 

Ms. Brandenburg, and Ms. Freeman. Accordingly, plaintiff’s argument, which is contingent 

upon a finding of harmful error in regard to the aforementioned issues, is without merit. Bayliss 

v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005). The ALJ’s RFC and step five finding 

should be upheld.

RECOMMENDATION

The Commissioner’s decision should be AFFIRMED and this case should be

DISMISSED. This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 

Appellate Procedure, should not be filed until entry of the district court's judgment or appealable 

order. The parties shall have fourteen (14) days from the date of service of a copy of this 

recommendation within which to file specific written objections with the court. Thereafter, the 

parties shall have fourteen (14) days within which to file a response to the objections. Failure to 

timely file objections to any factual determination of the Magistrate Judge will be considered as 

a waiver of a party's right to de novo consideration of the factual issues and will constitute a 

waiver of a party's right to appellate review of the findings of fact in an order or judgment 

entered pursuant to this recommendation.

DATED this 25th day of April 2017.