IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

RAMONA R. HEFLIN-BUESCHER, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Acting Commissioner of Social 

Security, 

Defendant. 

PAP AK, Magistrate Judge: 

Case No. 6:15-cv-01875-PK 

OPINION AND ORDER 

Ramona R. Heflin-Buescher ("Plaintiff') seeks judicial review of the Commissioner of 

Social Security's ("Commissioner") decision denying her application for Supplemental Security 

Income ("SSI") under Title XVI of the Social Security Act ("Act"). This Court has jmisdiction 

over Plaintiffs action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). I have considered the 

parties' briefs and all evidence in the administrative record. For the reasons set forth below, the 

Commissioner's final decision is AFFIRMED. 

PROCEDURAL BACKGROUND 

Plaintiff protectively filed an application for SSI on May 23, 2012, alleging disability 

beginning January 1, 2008. Following a denial of benefits, Plaintiff requested a hearing before an 

1 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 1 of 18
ALJ. On January 30, 2014, ALJ MaryKay Rauenzahn held a hearing. Plaintiff was represented 

by counsel and testified, as did Vocational Expert ("VE") Mark McGowan. On March 21, 2014, 

the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. The 

Appeals Council denied review on August 7, 2015, and this action followed. 

DISABILITY ANALYSIS 

To establish disability within the meaning of the Act, a 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)(l)(A). The Commissioner has established a five-step 

sequential process for determining whether a claimant has made the requisite demonstration. See 

Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. § 404.!520(a)(4). At the first 

four steps of the process, the burden of proof is on the claimant; only at the fifth and final step 

does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d I 094, I 098 

(9th Cir. 1999). 

At the first step, the ALJ considers the claimant's work activity, if any. See Bowen, 482 

U.S. at 140; see also 20 C.F.R. § 416.920(a)(4)(i). If the ALJ finds that the claimant is engaged 

in substantial gainful activity, the claimant will be found not disabled. See Bowen, 482 U.S. at 

140; see also 20 C.F.R. §§ 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will proceed 

to the second step. 

At the second step, the ALJ considers the medical severity of the claimant's impairments. 

See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is 

"severe" if it significantly limits the claimant's ability to perform basic work activities and is 

expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 

2 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 2 of 18
20 C.F.R. § 404.1520(c). The ability to perform basic work activities is defined as "the abilities 

and aptitudes necessary to do most jobs." 20 C.F.R. § 404.152l(b); see also Bowen, 482 U.S. at 

141. If the ALJ finds that the claimant's impairments are not severe or do not meet the duration 

requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 

C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c). Neve1theless, it is well established that "the step-two 

inquiry is a de minim is screening device to dispose of groundless claims." Smolen v. Chafer, 80 

F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen, 482 U.S. at 153-54). "An impairment or 

combination of impairments can be found 'not severe' only ifthe evidence establishes a slight 

abnormality that has 'no more than a minimal effect' on an individual[']s ability to work." Id, 

quoting Social Security Ruling ("SSR") 85-28, 1985 SSR LEXIS 19 (1985). 

If the claimant's impairments are severe, the evaluation will proceed to the third step, at 

which the ALJ determines whether the claimant's impairments meet or equal "one of a number 

oflisted impairments that the [Commissioner] acknowledges are so severe as to preclude 

substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 

404.1520(d). If the claimant's impairments are equivalent to one of the impairments enumerated 

in20 C.F.R. § 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See 

Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d). 

If the claimant's impairments are not equivalent to one of the enumerated impairments, 

between the third and the fourth steps the ALJ is required to assess the claimant's residual 

functional capacity ("RFC"), based on all the relevant medical and other evidence in the 

claimant's case record. See 20 C.F.R. § 404.1520(e). The RFC is an estimate of the claimant's 

capacity to perform sustained, work-related physical and/or mental activities on a regular and 

3 - OPINION AND ORDER 

• 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 3 of 18
continuing basis, 1 despite the limitations imposed by the claimant's impairments. See 20 C.F.R. 

§ 404.1545(a); see also S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996). 

At the fourth step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. § 

416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can 

still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 

482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(a)(4)(iv), 404.1520(£). In 

the event the claimant is no longer capable of performing his or her past relevant work, the 

evaluation will proceed to the fifth and final step, at which the burden of proof shifts, for the first 

time, to the Commissioner. 

At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's age, education, and work experience to determine whether a person with those 

characteristics and RFC could perform any jobs that exist in significant numbers in the national 

economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 

404.1560( c ), 404.1566. If the Commissioner meets her b\U'den to demonstrate the existence in 

significant numbers in the national economy of jobs capable of being performed by a person with 

the RFC assessed by the ALJ between the third and fourth steps of the five-step process, the 

claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 

404.1520(a)(4)(v), 404,1520(g), 404.1560(c), 404.1566. A claimant will be found entitled to 

benefits ifthe Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 

142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g). 

1 "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." S.S.R. 

No. 96-8p, 1996 SSR Lexis 5 (July 2, 1996). 

4 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 4 of 18
LEGAL STANDARD 

A reviewing court must affirm an Administrative Law Judge's decision if the ALJ 

applied proper legal standards and his or her findings are supported by substantial evidence in 

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

Cir. 2004). 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." Lingenfelter v. Astrue, 

504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th 

Cir. 2006)). 

The court must review the record as a whole, "weighing both the evidence that supports 

and the evidence that detracts from the Commissioner's conclusion." Id (quoting Reddick v. 

Chafer, 157 F.3d 715, 720 (9th Cir. 1998)). The court may not substitute its judgment for that of 

the Commissioner. See Id (citing Robbins, 466 F.3d at 882); see also Edlund v. Massanari, 253 

F.3d 1152, 1156 (9th Cir. 2001). Moreover, the court may not rely upon its own independent 

findings of fact in determining whether the ALJ' s findings are suppmted by substantial evidence 

of record. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (citing SEC v. Chene1y 

C01p., 332 U.S. 194, 196 (1947)). Variable interpretations of the evidence are insignificant ifthe 

Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

If the ALJ's interpretation of the evidence is rational, it is immaterial that the evidence may be 

"susceptible [of] more than one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750 

(9th Cir. 1989) (citing Gallantv. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984)). 

When the evidence before the ALJ is subject to more than one rational interpretation, we 

must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shala/a, 53 F.3d 

1035, 1041 (9th Cir. 1995)). A reviewing coutt, however, "cannot affirm the Commissioner's 

5 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 5 of 18
decision on a ground that the Administration did not invoke in making its decision." Stout v. 

Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a 

comt may not reverse an ALJ's decision on account of an enor that is harmless. Id at 1055-56. 

"[T]he burden of showing that an enor is harmful normally falls upon the patty attacking the 

agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 

SUMMARY OF ADMINISTRATIVE RECORD2 

Plaintiff was 41 years old on her alleged onset date of January 1, 2008. Tr. 11.3 She 

completed the ninth grade. Tr. 189. Prior to her claimed disability onset date, Plaintiff worked as 

a truck driver and construction flagger. Id. Plaintiff alleges that she is unable to work due to 

neuropathy, initable bowel syndrome ("IBS"), depression, anxiety, diabetes, and high blood 

pressure. Tr. 188. 

I. The Medical Record 

The patties are familiar with the medical record. Therefore, it will be set out herein only 

as necessary. 

II. The Hearing Testimony 

On January 30, 2014, ALJ Rauenzahn held a hearing in connection with Plaintiffs 

application for SSL Tr.32-65. 

Plaintiff testified that she was 47 years old and lived at home with four children. Tr. 35-

36. She had a driver's license, but voluntai·iiy chose not to drive because she could not feel her 

feet and her vision had deteriorated. Tr. 36. She testified that she could read and write, and 

2 The following recitation constitutes a summary of the evidence contained within the Administrative Record, and 

does not reflect any independent finding of fact by the comi. 

3 Citations to "Tr." Refer to the page(s) indicated in the official transcript of the Administrative Record filed herein 

as Docket No. 11. 

6 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 6 of 18
completed the ninth grade. Tr. 37. Plaintiff ran a trucking company for "a few years," during 

which she "did all the billing, the payroll, dispatched and I drove bobtail." Tr. 38. 

Plaintiff stated that she chose Januaiy I, 2008 as her disability onset date because her 

neuropathy and depression began affecting her ability to stand, sleep, and sit still. Tr. 37. When 

asked why she could not perform a "sit down job," Plaintiff stated that she had difficulty 

functioning in daily life. Tr. 38. She futiher stated that the "idea of leaving [her] house makes 

[her] very sick," and upset. Tr. 39. When asked why she ceased her therapy appointments, she 

repotied that her therapist retired and the idea of finding a new therapist was too daunting. Id 

Plaintiff stated that she is frequently noncompliant with her medication regimen because 

she "has a hard time taking [her] medicine" and felt like her medications were ineffective. Id. 

She stopped smoking marijuana one month before the hearing, and before that smoked an ounce 

every three weeks. Id Plaintiff testified that she stopped taking her narcotic medications because 

they made her feel sick. Tr. 40. The ALJ pointed out that the medical records showed that 

Plaintiffs doctor refused to prescribe her more narcotic medication because Plaintiff was 

smoking marijuana. Id. The ALJ further pointed out that Plaintiff checked in to an emergency 

room in an attempt to receive narcotic medication. Id. Plaintiff argued that she did not attempt to 

"get pain pills," and became upset when she was offered narcotic medication. Id. 

Plaintiff testified that she tried to exercise with her son twice a week in her garage. Id. 

She stated that she had problems with night tetTors and sleeping in general. Tr. 41. She wore a 

knee brace, and had not received treatment for her "trick knee" other than an MRI in August 

2012. Id. She testified that she could not walk more than a block without stopping to rest, and 

could stand for five to ten minutes in the kitchen or grocery store. Id. She stated that she could 

lift up to 20 pounds, lift her arms above her head, rarely bend over to pick something up off the 

7 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 7 of 18
ground, never crouch, kneel, or open jars with her hands, and slowly climb one flight of stairs. 

Tr. 43. 

Plaintiff testified that she sleeps for 16 to 18 hours per day and watches television for the 

remainder of the day, and her children perform most of the household chores. Tr. 45. She stated 

that she could not read because her vision had deteriorated. Id Plaintiff cared for two homeless 

children in addition to her two biological children. Tr. 46. 

ALJ FINDINGS 

At the first step of the five-step sequential evaluation process, the ALJ found that 

Plaintiff had not engaged in substantial gainful activity since May 23, 2012, the application date. 

Tr. 13. 

At the second step, the ALJ found that Plaintiffs suffered from the following severe 

impairments: diabetes mellitus, neuropathy in bilateral feet, hype1tension, gastroesophageal 

reflux disorder, asthma, anxiety disorder versus posttraumatic stress disorder, depression, 

insomnia, degenerative joint disease of the left knee, obesity, and methamphetamine addiction in 

cunent remission. Id The ALJ found that Plaintiffs IBS, vision problems, and neuropathy in her 

hands were not severe impairments. Tr. 13-14. 

At the third step, the ALJ concluded that Plaintiff's impairments do not meet or equal the 

criteria for any condition in the Listing ofimpairments, 20 C.F .R. Pt. 404, Subpt. P, App. I. Id. 

The ALJ found that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 

416.967(b ), except: 

[s]he can stand and walk two hours in an eight-hour workday; occasionally climb 

stairs and ramps; camtot climb ladders, ropes or scaffolds; and can occasionally 

stoop and crouch. She camtot kneel or crawl; and can frequently, not constantly, 

bilaterally handle and finger. She should have no concentrated exposure to 

extreme cold or vibrations; no exposure to workplace hazards such as unprotected 

heights or dangerous machinery; no exposure to dust, fumes or gasses in 

8 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 8 of 18
Tr. 15. 

concentrations greater than those generally found in the ordinary office 

environment; and should not be required to ambulate over uneven surfaces. She is 

able to understand, remember and carry out only simple instructions that can be 

learned in 30 days or less; can have occasional public contact and occasional 

coworker contact, with no group tasks/ she should be permitted to sit and stand as 

needed for com£01t while remaining on task; and be permitted one to two ordinary 

batlll'oom breaks per day in addition to access during normal breaks. 

At the fourth step, the ALJ concluded that Plaintiff was unable to perform any past 

relevant work. Tr. 22. However, at step five, the ALJ found jobs exist in significant numbers in 

the national economy that Plaintiff can perform, including assembler of small products, 

electronics assembler, and computer controlled color photograph printer operator. Tr. 23. As a 

result, the ALJ concluded Plaintiff has not been disabled from January 1, 2008, through the date 

of her decision. Id. 

DISCUSSION 

Plaintiff argues the ALJ erred by failing to: (1) provide clear and convincing reasons to 

reject Plaintiffs subjective symptom testimony; (2) find Plaintiffs IBS a "severe" impairment; 

(3) credit the lay witness testimony; and ( 4) prove that Plaintiff retains the ability to perform 

"other work" in the national economy. 

I. Subjective Symptom Testimony 

When evaluating the credibility of a plaintiffs testimony regarding the severity and 

limited effect of the plaintiffs symptoms, the ALJ must engage in a two-step analysis. 

Lingenfelter, 504 F.3d at 1035-36. "First, the ALJ must determine whether the [plaintiff] has 

presented objective medical evidence of an underlying impaitment which could reasonably be 

expected to produce the pain or other symptoms alleged." Id. at 1036 (internal citations and 

quotation marks omitted); 20 C.F.R. §§ 404.1529, 416.929. The plaintiff is not required to show 

9 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 9 of 18
that her impairment "could reasonably be expected to cause the severity of the symptom she has 

alleged; she need only show that it could reasonably have caused some degree of the symptom." 

Id. (quoting Smolen, 80 F.3d at 1282). If the plaintiff meets the first test and there is no evidence 

of malingering, the ALJ can only reject the plaintiffs testimony about the severity of the 

symptoms if she gives "specific, clear and convincing reasons" for the rejection. Id. To support a 

lack of credibility finding, the ALJ is required to "point to specific facts in the record which 

demonstrate that [the plaintiff] is in less pain than she claims." Dodrill v. Shala/a, 12 F.3d 915, 

918 (9th Cir. 1993). 

The ALJ did not find evidence of malingering; therefore, the ALJ was required to give 

clear and convincing reasons for doubting Plaintiffs subjective symptom testimony. 

A. Noncompliance with Recommended Treatment 

The ALJ doubted Plaintiffs subjective symptom testimony because she failed to comply 

with treatment recommendations from her physicians. An ALJ may rely on a plaintiffs 

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

of treatment" to doubt her subjective testimony. Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 

2012) (quoting Tommasetti vAstrue, 533 F.3d 1035, 1039 (9th Cir. 2008)). Plaintiff ignored her 

physicians' prescribed dietary and exercise lifestyle changes relating to her diabetes. Tr. 16. 

Plaintiff argues that she"[ did] not know what a diabetic diet [was]," as evidenced by her fruit 

based diet in August, 2011. Tr. 368-69. However, the record shows that upon her diabetes 

diagnosis in May, 2008, her physician "discussed diabetes at length today and the importance for 

a diabetic diet and exercise." Tr. 283. Plaintiff further argues that her lack of insurance prevented 

her from complying with diet and exercise recommendations. This argument is unpersuasive, as 

I 0 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 10 of 18
Plaintiff knew her doctors' recommendations and insurance has little effect on exercise and diet 

changes. 

Additionally, Plaintiff failed to consistently check her blood sugars, against the 

recommendations of her physicians. Tr. 349-50, 370, 396, 430. Plaintiff argues that she lost her 

insurance and could not afford test strips and medical appointments, and should not be 

discredited for failing to comply with a treatment course she could not afford. Orn v. Astrue, 495 

F.3d 625, 638 (9th Cir. 2007). The record demonstrates that Plaintiff lost her insurance from 

November, 2011 to January, 2012, and she could not otherwise afford her medications in July, 

2010. Tr. 360, 362, 400. However, many instances of noncompliance occur on dates when 

Plaintiff had insurance and could afford her medication. Tr. 360, 370, 396. Therefore, the ALJ 

did not err to the extent that she relied on Plaintiffs noncompliance on dates coinciding with her 

ability to afford treatment. 

As further evidence of Plaintiffs noncompliance with her physicians' recommendations, 

the ALJ noted that Plaintiff smoked marijuana regularly, despite suffering from asthma. Indeed, 

Dr. Lana Gee-Gott, Plaintiffs physician, opined that her asthma was significantly worse at the 

same appointment she noted that Plaintiff began smoking marijuana daily. Tr. 379-80. 

Plaintiff argues that her emotional distress, anxiety, and depression prevented her from 

effectively managing her health conditions. However, this notion strains credulity. Plaintiff 

remained complaint with several medication regimens during emotionally turbulent times, and 

rep01tedly self-medicated with marijuana daily. 

The ALJ did not err in relying on Plaintiffs many instances of noncompliance to doubt 

her subjective symptom testimony. 

11 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 11 of 18
B. Inconsistencies Between Plaintiffs Testimony and the Record 

The ALJ noted several discrepancies between Plaintiffs testimony and the record. An 

ALJ may use contradictions between a plaintiffs testimony and the medical record to reject the 

plaintiffs subjective testimony. Carmickle v. Comm 'r of Soc. Sec. Admin., 533 F.3d 1155, 1161 

(9th Cir. 2008). On November 18, 2012, Plaintiffrep01ied to an emergency room and requested a 

refill of methadone, which she stated she had been taking for two years. Tr. 545. However, the 

record indicates that Plaintiff was prescribed methadone once, in 2010, and the prescription was 

for a single occasion. Tr. 401. While the ALJ stated that Dr. Gee-Gott never prescribed Plaintiff 

methadone, that error is harmless as the thrust of the ALJ' s argument remains true. The ALJ did 

not err in identifying this discrepancy. 

The ALJ also noted that while Plaintiff reported that her agoraphobia confined her to her 

home, she was able to take a bus and walk to the hearing without difficulty. Tr. 21. Plaintiff 

argues that agoraphobia is a condition that relies on self-reporting, and both lay witnesses 

indicated that Plaintiff does not leave the house to shop. Tr. 216, 258. However, Plaintiff was 

able to ride public transportation to the hearing and regularly attends medical appointments. 

While Plaintiffs argument is not wholly unsupported, the ALJ' s interpretation was rational and 

therefore cannot be overturned. See Tackett, 180 F.3d at 1098 ("If the evidence can support 

either outcome, the court may not substitute its judgment for that of the ALJ ."). 

Plaintiff stated that she voluntarily chose to wean herself off pain medication, but the 

ALJ noted that Plaintiff actually stopped using pain medication because Dr. Gee-Gott terminated 

the doctor-patient relationship. Tr. 18. The ALJ's interpretation is supported by the record, which 

reflects that Plaintiff ceased using Morphine in November and December of2012 because she 

could not obtain a prescription refill, not because she chose to wean herself off the medication. 

12 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 12 of 18
Tr. 553. That interpretation is further supported by a third patty function report, completed in 

December 2012, wherein Plaintiffs daughter stated that she "is withdrawing off of 90 mg of 

morphine a day because her primary care doctor dropped her cold." Tr. 262. 

The ALJ also stated that Plaintiff was dismissed from Dr. Gee-Gott's practice due to 

noncompliance issues. Tr. 18, 20. However, this is unsupported by the record. There is no direct 

evidence establishing the reason Dr. Gee-Gott terminated the doctor-patient relationship. 

The ALJ did not err in identifying several inconsistencies between Plaintiff's testimony 

and the record. Although ALJ erred in relying on Plaintiff's dismissal from Dr. Gee-Gott's 

medical practice, that error was harmless. Carmickle, 533 F.3d at 1162-63. 

C. Plaintiff's Activities 

The ALJ impugned Plaintiff's subjective symptom testimony, finding her daily activities 

were inconsistent with her alleged level of disability. Inconsistency between a plaintiff's 

testimony and her activities of daily living is a clear and convincing reason to discredit her 

subjective symptom testimony. Tommasetti, 533 F.3d at 1039. The ALJ noted that Plaintiff 

allowed two homeless youths to live in her home, in addition to her two biological children. Tr. 

36, 45. She also provided babysitting services for her grandchild and the child of a friend. Tr. 18. 

These activities generally refute Plaintiff's contention that she sleeps for 16 to 18 hours per day 

and is incapable of performing household chores. Additionally, I note that Plaintiff reported to 

her psychiatrist that she "does not feel appreciated for all she does for the family," fmther 

contradicting Plaintiff's testimony that she is completely disabled. Tr. 428. 

The ALJ stated that Plaintiff's symptom testimony was inconsistent with her statement 

that she was able to "hang out and watch movies everyday" with her friend. This is erroneous, as 

watching television is an undemanding activity that has no meaningful relationship to workplace 

13 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 13 of 18
activities. Orn, 495 F.3d at 639. However, this error was harmless, as the ALJ provided other 

inconsistencies between Plaintiffs daily activities and her testimony. Carmickle, 533 F.3d at 

1162-63. 

Finally, the ALJ doubted Plaintiffs subjective testimony due to her "tenuous connection 

to the workforce with a minimal work history even before her alleged onset of disability." Tr. 17. 

A plaintiffs poor work history is a clear and convincing reason to doubt her subjective 

testimony. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (the plaintiffs "extremely 

poor work history" and the fact that she "has shown little propensity to work in her lifetime" 

weighed against her subjective testimony). 

For all the foregoing reasons, the ALJ gave clear and convincing reasons to doubt 

Plaintiffs subjective symptom testimony. An ALJ's overall subjective symptom decision may be 

upheld even if all reasons are not clear and convincing, so long as some clear and convincing 

reasons remain. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 

II. Failure to Consider JBS a Severe Impairment 

At step two, the ALJ must consider the medical severity of plaintiffs impairments. See 

Bowen, 482 U.S. at 140-141 (1987); see also 20 C.F.R. § 419.920(a)(4)(ii). An impairment is 

"severe" ifit significantly limits the plaintiffs ability to perform basic work activities and is 

expected to continue for a period of twelve months or longer. Bowen, 482 U.S. at 141. A person 

who is able to perform basic work activity possesses the "abilities and aptitudes necessary to do 

most jobs." Id. If the ALJ finds that the plaintiffs impairments are not severe or do not meet the 

duration requirement, the plaintiff will be found not disabled under the meaning of the Act. Id 

However, if the ALJ determines that the plaintiff does indeed suffer from a severe impairment, 

the ALJ will proceed with the next steps of the evaluation. 20 C.F.R. § 416.920(a)(4)(ii-iii); 

14 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 14 of 18
Burch, 400 F.3d at 679. At step two, a claim will be rejected only ifthe evidence establishes that 

the plaintiffs impairments establish only a slight abnormality that has no more than a minimal 

effect on an individual's ability to work. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); 

S.S.R. 96-3p. Accordingly, the step-two inquiry is merely a de minimus screening device to 

dispose of groundless claims. Smolen, 80 F.3d at 1290 (citing Bowen, 482 U.S. at 137, 153-54). 

Plaintiff alleges that her IBS should be considered a severe impairment at step two. "A 

physical or mental impairment must be established by medical evidence consisting of signs, 

symptoms, and laboratory findings, not only by [a plaintiffs] statement of symptoms. 20 C.F.R. 

§ 416.908; see Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (A plaintiffs symptoms 

alone cannot establish a severe impairment. Symptoms "are an individual's own perception or 

description of the impact of his or her physical or mental impairment(s)"). While Plaintiff 

consistently references her dianhea throughout the record, a colonoscopy, endoscopy, and stool 

samples were all negative for colitis or IBS. Tr. 290. Plaintiffs treating physician, Dr. Mark 

Litchman, diagnosed her with IBS as a diagnosis of exclusion. Tr. 289. However, due to a dea1ih 

of objective diagnostic findings and the sole source of evidence being Plaintiffs statements of 

symptoms, the ALJ declined to find Plaintiffs IBS a severe impairment. Tr. 13. Additionally, the 

ALJ noted that Plaintiff complained of severe diarrhea in July, 2012, but gained eight pounds by 

August, 2012. Tr. 13. The ALJ also noted that the record failed to show the array of symptoms 

commonly associated with severe dianhea, such as dehydration, malnutrition, or inability to keep 

food down. Tr. 13. An ALJ is "entitled to draw inferences logically flowing from the evidence," 

and the ALJ's interpretation of the record was rational. Macri v. Chafer, 93 F.3d 540, 544 (9th 

Cir. 1996); Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). 

15 - OPINION AND ORDER 

Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 15 of 18
III. Lay Witness Testimony 

The ALJ has a duty to consider lay witness testimony. 20 C.F.R. § 404.1513( d); 

404.1545(a)(3); 416.945(a)(3); 416.913(d); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 

Friends and family members in a position to observe the claimant's symptoms and daily activities 

are competent to testify regarding the claimant's condition. Dodrill, 12 F.3d at 918-19. The ALJ 

may not reject such testimony without comment and must give reasons germane to the witness 

for rejecting her testimony. Nguyen v. Chafer, I 00 F.3d 1462, 1467 (9th Cir. 1996). However, 

inconsistency with the medical evidence may constitute a germane reason. Lewis, 236 F.3d at 

512. The ALJ may also reject lay testimony predicated upon the testimony ofa claimant properly 

found not credible. Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009). 

Claudia Jones, a family friend, completed an adult functional report on Plaintiff's behalf. 

Tr. 213-219. Ms. Jones stated that she saw Plaintiff daily, and that they watched movies because 

Plaintiff"can barely walk." Tr. 213. She stated that Plaintiff's friends and family helped her 

dress, brushed her teeth and hair, changed her clothes, reminded her to take medication, and 

helped with household chores. Tr. 214-15. Ms. Jones stated that Plaintiff left the house twice per 

week, but she did not shop. Tr. 215-16. Additionally, Ms. Jones stated that Plaintiff"snap[ped] at 

the small things," was short tempered, "space[ d] out" frequently, had difficulty remembering and 

concentrating, and maintained her balance poorly. Tr. 217-18. 

Ashley Buescher, Plaintiff's daughter, also completed an adult functional repot1 on 

Plaintiff's behalf. Ms. Buescher stated that she saw Plaintiff daily. Tr. 255. She also stated that 

Plaintiff could barely walk, did not perform household chores, watched television, occasionally 

read, and Ms. Buescher frequently reminded Plaintiff to bathe and brush her hair. Tr. 255-57. 

Ms. Buescher and others shopped, paid bills, and drove for Plaintiff. Tr. 258. Additionally, Ms. 

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Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 16 of 18
Buescher stated that Plaintiff had difficulty concentrating, had no hobbies, did not handle stress 

well, and had no social activities due to pain. Tr. 258-61. 

The ALJ gave little weight to the lay witness evidence because both Ms. Jones and Ms. 

Buescher gave their function reports during temporary aggravations of Plaintiff's conditions. Tr. 

17. The temporal nature of lay witness testimony is a germane reason to give that testimony little 

weight. See Cole v. Astrue, 295 Fed.Appx. 387, 389 (9th Cir. 2010). Ms. Jones provided her 

report while Plaintiff suffered from a broken foot, which the ALJ noted could account for her 

"inability to be mobile as desired, interfere with self-care and household chores, and potentially 

exacerbate her mood." Tr. 17. Ms. Buescher provided her report while Plaintiff temporarily 

suffered from the symptoms of opioid withdrawal after she stopped taking Morphine and 

Fentanyl. Tr. 262. Because each lay witness gave their report while Plaintiff suffered from a 

temporary aggravation of her symptoms, the ALJ did not err in giving those reports little weight. 

IV. Commissioner's Burden at Step Five 

An ALJ must propose a hypothetical based on medical assumptions suppmted by 

substantial evidence reflecting the plaintiff's limitations. See Osenbrockv. Apfel, 240 F.3d 1157, 

1165 (9th Cir. 2001 ). However, an ALJ may omit any alleged limitations that the ALJ has found 

to be not credible from the vocational hypothetical promulgated to the VE. Bayliss v. Barnhart, 

427 F.3d 1211, 1217 (9th Cir. 2005); see also Magallanes, 881 F.2d at 756-57 (holding that it is 

proper for an ALJ to limit a hypothetical to restrictions supported by substantial evidence in the 

record). 

Plaintiff argues that the Commissioner failed to correctly evaluate Plaintiff's claim at step 

five of the disability process. However, Plaintiff's argun_ients are predicated on finding the ALJ 

erred in her assessment of Plaintiff's subjective symptom testimony, as well as the lay witness 

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Case 6:15-cv-01875-PK Document 30 Filed 11/03/16 Page 17 of 18
evidence. Because I decline to overturn the ALJ's assessments, Plaintiffs argument is 

unpersuasive. 

CONCLUSION 

Because the Commissioner's decision is based on proper legal standards and suppo1ied 

by substantial evidence, the Commissioner's final decision is AFFIRMED and this case 

DISMISSED. 

DATED this 3rd day ofNovember 2016. 

18- OPINION AND ORDER 

Honorable Paul J. Papak · 

United States Magistrate Judge 

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