IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

TERESA LYNN DUTTON, 

Plaintiff, 

v. 

CAROLYNW. COLVIN, 

Commissioner of Social Security 

Administration, 

Defendant. 

GEORGE J. WALL 

1336 E. Burnside St. Suite 130 

Portland, Oregon 97214 

Of Attorney for Plaintiff 

BILLY J. WILLIAMS 

United States Attorney 

JANICE E. HEBERT 

Assistant United States Attorney 

District of Oregon 

1000 SW Third Ave., Suite 600 

Portland, OR 97204-1011 

CATHERINE ESCOBAR 

Special Assistant United States Attorney 

Office of the General Counsel 

701 Fifth Ave., Suite 2900 MIS 221A 

Seattle, WA 98104-707 5 

Of Attorneys for Defendant 

1 OPINION AND ORDER 

Case No. 3:15-cv-2164-PA 

OPINION AND ORDER 

Case 3:15-cv-02164-PA Document 17 Filed 09/27/16 Page 1 of 11
P ANNER, District Judge: 

Teresa L. Dutton ("Plaintiff') seeks judicial review of the final decision by the Social 

Security Commissioner ("Commissioner") denying her application for Disability Insurance 

Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the 

Social Security Act ("SSA"). This Court has jurisdiction to review the Commissioner's decision 

pursuant to 42 U.S.C. § 405(g). 

Administrative History 

On March 25, 2011, Plaintiff applied for DIB and SSL Tr. 17. Plaintiff alleged disability 

beginning on August 15, 2003. Id. Plaintiffs application was denied initially and on 

reconsideration. Id. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), 

which took place on May 19, 2014 before ALJ Tom Morris. Tr. 38-92. Plaintiff was represented 

by counsel and testified, as did a vocational expert ("VE"). Id. On July 1, 2014, ALJ Morris 

issued a decision finding Plaintiff not disabled. Tr. 30. Plaintiff requested review from the 

Appeals Council, which was declined on September 22, 2015 and this action followed. Tr. 1. 

Background 

Born in 1968, Plaintiff was 35 years old on the alleged disability onset date. Tr. 207. 

Plaintiff is insured for benefits through September 30, 2011. Tr. 17, 19. Plaintiff alleges 

disability due to foot bone spurs, Graves' disease, knee problems, bipolar disorder, depression, 

and post traumatic stress disorder ("PTSD"). Tr. 242. Plaintiff has a GED and has worked as a 

carnival game attendant, shelf stocker, bell ringer for the Salvation Army, and a sample table 

attendant. Tr. 28. 

Disability Analysis 

A claimant is disabled if he or she is unable to "engage in any substantial gainful activity 

by reason of any medically determinable physical or mental impairment which ... has lasted or 

2 OPINION AND ORDER 

Case 3:15-cv-02164-PA Document 17 Filed 09/27/16 Page 2 of 11
can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 

423(d)(l)(A). "Social Security Regulations set out a five-step sequential process for determining 

whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. 

Comm'r, 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially dispositive. 20 C.F.R. §§ 

404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of 

questions: 

1. Is the claimant performing "substantial gainful activity?" 20 C.F.R. §§ 404.1520(a)(4)(i); 

416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or 

intended to be done for pay or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is 

performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 

404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, 

the analysis proceeds to step two. 

2. Is the claimant's impairment "severe" under the Commissioner's regulations? 20 C.F.R. §§ 

404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless expected to result in death, an impairment is 

"severe" if it significantly limits the claimant's physical or mental ability to do basic work 

activities. 20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or must be 

expected to last for a continuous period of at least 12 months. 20 C.F .R. §§ 404.1509; 416.909. If 

the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 

404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis 

proceeds to step three. 

3. Does the claimant's severe impairment "meet or equal" one or more of the impairments listed 

in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 

404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis proceeds beyond step three. At that point, the ALJ must 

3 OPINION AND ORDER 

Case 3:15-cv-02164-PA Document 17 Filed 09/27/16 Page 3 of 11
evaluate medical and other relevant evidence to assess and determine the claimant's "residual 

functional capacity" ("RFC"). This is an assessment of work-related activities that the claimant 

may still perform on a regular and continuing basis, despite any limitations imposed by his or her 

impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e); 416.945(b)-(c). After the 

ALJ determines the claimant's RFC, the analysis proceeds to step four. 

4. Can the claimant perform his or her "past relevant work" with this RFC assessment? If so, then 

the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant 

cannot perform his or her past relevant work, the analysis proceeds to step five. 

5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to 

make an adjustment to other work that exists in significant numbers in the national economy? If 

so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 

404.1560(c); 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id. 

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). 

The claimant bears the burden of proof at steps one through four. Id. at 953. The 

Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the 

Commissioner must show that the claimant can perform other work that exists in significant 

numbers in the national economy, "taking into consideration the claimant's residual functional 

capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 

1999); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national 

economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 

404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is 

able to perform other work existing in significant numbers in the national economy, the claimant 

is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099. 

4 OPINION AND ORDER 

Case 3:15-cv-02164-PA Document 17 Filed 09/27/16 Page 4 of 11
The ALJ's Findings 

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

Plaintiff had not engaged in substantial gainful activity since the alleged onset date, August 15, 

2003. Tr. 19. 

At step two, the ALJ determined Plaintiff has the following severe impairments: left knee 

ligament tear, left heel bone spur, and personality disorder. Id. The ALJ identified other injuries 

and mental conditions that did not rise to the level of severe impairment. Tr. 19-21. 

At step three, the ALJ found that Plaintiffs impairments, either singly or in combination, 

did not meet or equal the requirements of a listed impairment. Tr. 23. Because Plaintiff did not 

establish disability at step three, the ALJ continued to evaluate how Plaintiffs impairments 

affected her ability to work during the relevant period. The ALJ found that Plaintiff had the 

residual functional capacity ("RFC") to perform medium work and: 

Tr. 23. 

[t]he claimant can occasionally lift or carry 50 pounds and frequently lift or carry 

25 pounds. She can stand and/or walk (with normal breaks) for a total of about six 

hours in an eight-hour workday. She can sit (with normal breaks) for a total of 

about six hours in an eight-hour workday. The claimant can frequently climb 

ramps and stairs. She can occasionally climb ladders, ropes, or scaffolds, kneel, 

crouch, and crawl. The claimant can tolerate occasional contact with the public 

and co-workers for work tasks. There should be no production rate pace work 

(i.e., assembly line work) but rather oriented work (such as office cleaner). The 

claimant needs one additional break of customary duration. 

At step four, the ALJ found that Plaintiff had no past relevant work, as the jobs she held 

did not rise to the level of substantial gainful activity. Tr. 28. 

At step five, the ALJ found Plaintiff could perform jobs with significant numbers in the 

national economy, including janitor, hospital cleaner, and agricultural sorter. Tr. 29. As such, the 

ALJ found Plaintiff not disabled. Id. 

5 OPINION AND ORDER 

Case 3:15-cv-02164-PA Document 17 Filed 09/27/16 Page 5 of 11
Standard of Review 

The reviewing court must affirm the Commissioner's decision if it is based on the proper 

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see 

also Hammock v. Bowen, 879 F .2d 498, 501 (9th Cir. 1989). "Substantial evidence" means 

"more than a mere scintilla, but less than a preponderance." Bray v. Comm'r, 554 F.3d 1219, 

1222 (9th Cir. 2009) (quoting Andrews v. Shala/a, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means 

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

conclusion." Id. Where the evidence is susceptible to more than one rational interpretation, the. 

Commissioner's conclusion must be upheld. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 

1982). Variable interpretations of the evidence are insignificant if the Commissioner's 

interpretation is a rational reading of the record, and this court may not substitute its judgment 

for that of the Commissioner. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "However, a 

reviewing court must consider the entire record as a whole and may not affirm simply by 

isolating a 'specific quantum of supporting evidence.' "Orn v. Astrue, 495 F.3d 625, 630 (9th 

Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 

Even where findings are supported by substantial evidence, "the decision should be set 

aside if the proper legal standards were not applied in weighing the evidence and making the 

decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 

U.S.C. § 405(g), the court has the power to enter, upon the pleadings and transcript record, a 

judgment affirming, modifying, or reversing the decision of the Commissioner, with or without 

remanding the case for a rehearing. 

6 OPINION AND ORDER 

Case 3:15-cv-02164-PA Document 17 Filed 09/27/16 Page 6 of 11
Discussion 

Plaintiff alleges the ALJ erred by improperly assessing: (1) the opinion of Plaintiffs 

treating nurse practitioner Kristin Cummings; and (2) the lay witness testimony of Danny 

Williams. 

I. Nurse Practitioner's Opinion 

Plaintiff argues the ALJ erred by giving little weight to the opinion of Kristin Cummings, 

Plaintiffs treating nurse practitioner. To reject the testimony of a medically acceptable treating 

source, the ALJ must give specific, legitimate reasons based on substantial evidence in the 

record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). However, a nurse practitioner is 

not a medically acceptable source, but instead is an "other source." § 404.1513(d)(l). To reject 

the opinion of an "other source" the ALJ need only give "reasons germane to each witness for 

doing so." Turner v. Comm 'r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010). 

Nurse Cummings treated Plaintiff from 2011 until 2014 and completed a check-the-box 

mental residual functional capacity assessment of Plaintiff in 2014. Tr. 806-08. She stated, 

among other limitations, that Plaintiff had moderately severe impairments in interacting with the 

general public, getting along with coworkers, and accepting criticism from superiors. Tr. 807. 

She also assessed Plaintiff with moderately severe limitations in concentration, persistence, and 

pace, as well as social interactions. Tr. 806-08. The assessment defined "moderately severe" 

impairments as limiting the affected person to only occasionally performing the activity. Tr. 806. 

The ALJ gave Nurse Cummings' opinion little weight because she is an "other source" and her 

findings contradicted Plaintiffs own reports, Dr. Sacks' findings, and Plaintiffs own abilities. 

Tr. 27. 

Plaintiff argues the ALJ erred by giving little weight to Nurse Cummings' assessment of 

Plaintiffs difficulties with her coworkers, supervisors, and the general public. Instead, the ALJ 

7 OPINION AND ORDER 

Case 3:15-cv-02164-PA Document 17 Filed 09/27/16 Page 7 of 11
granted great weight to the assessments of Dr. Gary Sacks, the examining psychologist, as well 

as the non-examining Drs. Joshua Boyd and Paul Rethlinger, all of whom opined that Plaintiff 

would have only moderate difficulties interacting with the general public and coworkers. Tr. 27. 

It was not error for the ALJ to accord more weight to Drs. Sacks, Boyd, and Rethlinger because 

they are acceptable medical sources, and as a nurse practitioner, Ms. Cummings' opinion is not 

owed the same deference as acceptable medical sources. Molina, 674 F.3d at 1111. Moreover, 

the ALJ accounted for Plaintiffs moderate difficulties in the RFC by limiting the Plaintiff to 

only "occasional contact with the public and co-workers for work tasks." Tr. 23. 

Plaintiff argues the ALJ further erred by failing to credit Nurse Cummings' opinion that 

Plaintiff had moderate limitations in concentration, persistence, and pace. Dr. Sacks conducted a 

mental status examination of Plaintiff; he opined that she was, at worst, "mildly impaired" in the 

areas of concentration, persistence, and pace. Tr. 552. The regulations allow an ALJ to give 

deference to a specialist's opinion concerning matters related to his specialty over that of 

nonspecialists. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). Thus, the ALJ did 

not err by relying on the opinion of an acceptable medical specialist over Nurse Cummings. 

Finally, Plaintiff argues the ALJ erred by failing to credit Nurse Cummings' opinion that 

Plaintiff had moderate limitations in social interactions. However, as the ALJ noted, Plaintiff 

described herself as a good salesperson in her part-time work, which involves selling bracelets 

and frequently interacting with customers, including door-to-door sales. Tr. 594, 625. She also 

frequently uses public transportation and goes out on a daily basis. Thus, the record contains 

evidence of daily activities that tend to contradict "other source" testimony, which is a germane 

reason for rejecting an "other source" opinion. Carmickle v. Comm 'r Soc. Sec. Admin., 533 F.3d 

1155, 1164 (9th Cir. 2008). Furthermore, Drs. Sacks, Boyd, and Rethlinger all assessed moderate 

social difficulty, which the ALJ adopted in his opinion. The ALJ did not err. 

8 OPINION AND ORDER 

Case 3:15-cv-02164-PA Document 17 Filed 09/27/16 Page 8 of 11
Plaintiff essentially argues for a different interpretation of the record, but the ALJ' s 

interpretation is rational and supported by substantial evidence. See Batson v. Comm 'r of Soc. 

Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (The Commissioner's findings are upheld if 

supported by inferences reasonably drawn from the record; if evidence exists to support more 

than one rational interpretation, the court must defer to the Commissioner's decision). 

II. Lay Witness Testimony 

Plaintiff argues the ALJ erred by failing to discuss the lay witness testimony of her 

friend, Danny Neal Williams. Lay testimony regarding a claimant's symptoms or how an 

impairment affects the claimant's ability to work is competent evidence the ALJ must take into 

account. Stout v. Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006). The ALJ may reject lay 

testimony if he provides "arguably germane reasons" supported by substantial evidence, even if 

those reasons are not clearly linked to the ALJ's determination. Lewis v. Apfel, 236 F.3d 503, 512 

(9th Cir. 2001). 

Mr. Williams completed a third party function report on behalf of Plaintiff. Tr. 250-60. 

He stated he has known Plaintiff for 20 years and sees her every day because she takes care of 

him. 1 Tr. 250. Mr. Williams is described in different sections of the record as either her husband 

or friend. Tr. 250, 301, 374. Mr. Williams stated Plaintiffs bone spurs make it difficult for her to 

stay on her feet, her Bipolar Disorder keeps her isolated from people and affects her ability to 

stay employed, and her knees hinder her ability to walk. Tr. 250. He also stated Plaintiff is 

troubled by Carpal Tunnel Syndrome, asthma, and "tailbone" problems. Tr. 250-60. Mr. 

Williams further stated that Plaintiff cooks, cleans, shops, and uses public transportation daily. 

Tr. 252-53. He stated that Plaintiff has difficulty interacting with other people, including 

1 Mr. Williams is disabled and receives benefits for his condition. 

9 OPINION AND ORDER 

Case 3:15-cv-02164-PA Document 17 Filed 09/27/16 Page 9 of 11
coworkers, and her personality disorder "has cost her jobs." Tr. 255. The ALJ failed to mention 

Mr. Williams' testimony. 

The Commissioner concedes the ALJ erred by failing to discuss Mr. Williams' testimony. 

However, the Commissioner contends the error was harmless because the ALJ rejected 

Plaintiffs subjective symptom testimony, and the ALJ's reasons for rejecting Plaintiffs 

testimony apply equally to Mr. Williams' testimony. 

An ALJ' s error is harmless when it is "inconsequential to the ultimate non-disability 

determination." Molina, 674 F.3d at 1115. An ALJ's failure to comment on lay witness 

testimony is harmless where the same reasons the ALJ used to reject the plaintiffs testimony 

also favor rejecting the lay witness' claims. Id at 1122. 

In this case, the ALJ rejected Plaintiff testimony in part because it was inconsistent with 

the medical record, a rationale that applies with equal force to Mr. Williams' testimony. Mr. 

Williams stated Plaintiff cannot stay on her feet for long periods of time or walk more than five 

to six blocks without resting because of her "bad knees." Tr. 250. The ALJ noted, however, that 

Plaintiff showed normal range of motion in her extremities in a 2007 exam, her knee displayed 

full range of motion in a January 2009 exam, and an X-ray of her knees in 2011 displayed 

normal results. Tr. 24. Additionally, although Mr. Williams reported that Plaintiff suffers from 

asthma "that makes her breathing not good," the ALJ noted that X-rays show Plaintiff had clear 

lungs and the record showed no objective evidence of any functional impairments caused by 

asthma. Tr. 21. Mr. Williams also reported that Plaintiff needed help to stand up when she bent 

down, she could not walk far, and needed help climbing stairs. Tr. 257. Plaintiffs allegations are 

undercut by her own report that she moved some of her belongings to a storage unit in 2009, and 

did a great deal of heavy lifting by moving her friend's furniture later that year. Tr. 25-26. 

10 OPINION AND ORDER 

Case 3:15-cv-02164-PA Document 17 Filed 09/27/16 Page 10 of 11
Plaintiff argues that Mr. Williams' report showed Plaintiff had difficulty cooperating with 

her supervisors, which should have been considered by the ALJ. However, the record shows the 

ALJ was aware of Plaintiffs difficulty in cooperating with her coworkers, as the ALJ gave great 

weight to Dr. Sacks, who opined Plaintiff had moderate interpersonal difficulties. Tr. 27. The 

ALJ also gave great weight to Drs. Boyd and Rethlinger, who opined Plaintiff had moderate 

difficulties interacting with the general public and should be limited to occasional public and 

I 

I 

' -

I 

coworker contact. Id. Thus, the ALJ considered Plaintiffs social limitations, his interpretation of 

the record is reasonable, and therefore the Court may not disturb it. 

Accordingly, the court concludes that the ALJ's failure to expressly address Mr. 

Williams' testimony was inconsequential to the ultimate determination of non-disability. Molina, 

674 F.3d at 1115. Any error was harmless. 

Conclusion 

Based on the foregoing, the Commissioner's decision denying Plaintiffs application for 

DIB and SSI is affirmed, and this case dismissed. 

IT IS SO ORDERED. 

DATED this .zt'day of September, 2016. 

{}#Wt$(~ OwenPanner 

United States District Judge 

11 OPINION AND ORDER 

Case 3:15-cv-02164-PA Document 17 Filed 09/27/16 Page 11 of 11