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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Susan Venezia, 

Plaintiff, 

v. 

Carolyn W. Colvin, Acting Commissioner 

of Social Security, 

Defendant. 

No. CV-16-08020-PCT-NVW 

ORDER 

Plaintiff Susan Venezia seeks review under 42 U.S.C. § 405(g) of the final 

decision of the Commissioner of Social Security (“the Commissioner”), which denied her 

disability insurance benefits under sections 216(i) and 223(d) of the Social Security Act. 

Because the decision of the Administrative Law Judge (“ALJ”) is supported by 

substantial evidence and is not based on legal error, the Commissioner’s decision will be 

affirmed. 

I. BACKGROUND 

Plaintiff was born in October 1950. She completed the equivalent of a high school 

education. From 1985 to 2000, Plaintiff worked as a pharmacy assistant. From October 

2003 to July 2011, Plaintiff worked for Lowe’s, designing and selling kitchen and 

bathroom countertops and sinks. On March 25, 2010, she was hospitalized for a 

hemorrhagic stroke, secondary to hypertension. She was discharged on March 27, 2010, 

in stable condition. A physical therapy evaluation found no need for further physical 

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therapy or rehabilitation. At some point after her stroke, Plaintiff returned to work for 

approximately a year. 

On July 25, 2011, Lowe’s terminated Plaintiff’s employment.1

 For the next year, 

she received unemployment compensation and sought work as a retail clerk. In 2014, 

Plaintiff testified that the most serious health problems affecting her ability to work are 

fibromyalgia, headaches, and osteoporosis.2

 She is able to drive, shop, manage money, 

prepare simple meals, wash dishes, manage personal care, feed pets, watch television, 

and use a computer and electronic tablet. 

On December 28, 2011, Plaintiff applied for disability insurance benefits, alleging 

disability beginning July 25, 2011. On February 19, 2014, she appeared with her attorney 

and testified at a video hearing before the ALJ. A vocational expert also testified. On 

April 22, 2014, the ALJ issued a decision that Plaintiff was not disabled within the 

meaning of the Social Security Act. The Appeals Council denied Plaintiff’s request for 

review of the hearing decision, making the ALJ’s decision the Commissioner’s final 

decision. On February 4, 2016, Plaintiff sought review by this Court. 

II. STANDARD OF REVIEW 

The district court reviews only those issues raised by the party challenging the 

ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A court may 

set aside the Commissioner’s disability determination only if the determination is not 

supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 

630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 

preponderance, and relevant evidence that a reasonable person might accept as adequate 

to support a conclusion considering the record as a whole. Id. Generally, when the 

evidence is susceptible to more than one rational interpretation, courts must uphold the 

 1

 Plaintiff said she was terminated because she did not remember how to design 

kitchens correctly, but on another occasion she said she was terminated for arriving late 

to work. 

2

 Although Plaintiff referred to osteoporosis, her attorney questioned her about 

symptoms she experienced due to osteoarthritis. 

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ALJ’s findings if they are supported by inferences reasonably drawn from the record. 

Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “Overall, the standard of review 

is highly deferential.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 

2015). 

III. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 

To determine whether a claimant is disabled for purposes of the Social Security 

Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears 

the burden of proof on the first four steps, but the burden shifts to the Commissioner at 

step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 

At the first step, the ALJ determines whether the claimant is engaging in 

substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 

disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant 

has a severe medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). 

If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ 

considers whether the claimant’s impairment or combination of impairments meets or 

medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. 

§ 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If 

not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant’s residual 

functional capacity and determines whether the claimant is still capable of performing 

past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the 

inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines 

whether the claimant can perform any other work based on the claimant’s residual 

functional capacity, age, education, and work experience. § 404.1520(a)(4)(v). If so, the 

claimant is not disabled. Id. If not, the claimant is disabled. Id. 

At step one, the ALJ found that Plaintiff meets the insured status requirements of 

the Social Security Act through September 30, 2016, and that she has not engaged in 

substantial gainful activity since July 25, 2011, the alleged onset date. The ALJ also 

found that Plaintiff received unemployment compensation in the fourth quarter of 2011 

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and in all four quarters of 2012. The ALJ found this to be inconsistent with a claim for 

disability because a claimant must certify that she is physically and mentally able, 

willing, and available to work to be eligible for unemployment compensation. 

At step two, the ALJ found that Plaintiff has the following medically determinable 

impairments: controlled hypertension, history of stroke March 25, 2010, migraines, 

asthma, obesity, borderline intellectual functioning, anxiety, and depression. The ALJ 

found that Plaintiff does not have an impairment or combination of impairments that has 

significantly limited (or is expected to significantly limit) her ability to perform basic 

work-related activities for 12 consecutive months. Therefore, at step two, the ALJ 

concluded that Plaintiff does not have a severe impairment or combination of 

impairments, and she is not disabled. By reaching this conclusion at step two, the ALJ 

was not required to assess Plaintiff’s residual functional capacity, determine whether she 

is still capable of performing past relevant work, or determine whether Plaintiff has skills 

that are transferable to other work. 

IV. ANALYSIS 

At step two, the ALJ was required to determine whether Plaintiff has a severe 

medically determinable physical or mental impairment. An impairment or combination 

of impairments is not severe if it does not significantly limit a claimant’s physical or 

mental ability to do basic work activities. 20 C.F.R. § 404.1521(a). “Basic work 

activities” means the abilities and aptitudes to do most jobs, such as walking, standing, 

sitting, seeing, hearing, etc. 20 C.F.R. § 404.1521(b). At step two, Plaintiff had the 

burden of proving she has impairments that significantly limit her ability to do basic work 

activities. 

Plaintiff contends that the evidence of record shows that her stroke, migraines, 

asthma, obesity, borderline intellectual functioning, anxiety, and depression significantly 

limit her ability to perform basic work activities. She further contends that the ALJ 

abused his discretion in concluding Plaintiff does not have a severe impairment or 

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combination of impairments because he erred in weighing medical source opinion 

evidence, assessing Plaintiff’s credibility, and weighing third-party reports. 

A. The ALJ Did Not Err in Weighing Medical Source Opinion Evidence. 

1. Legal Standard 

Generally, more weight should be given to the opinion of a treating physician than 

to the opinions of physicians who do not treat the claimant, and the weight afforded a 

non-examining physician’s opinion depends on the extent to which he provides 

supporting explanations for his opinions. Garrison v. Colvin, 759 F.3d 995, 1012 (9th 

Cir. 2014). Where a treating physician’s opinion is not contradicted by another 

physician, it may be rejected only for “clear and convincing” reasons, and where it is 

contradicted, it may not be rejected without “specific and legitimate reasons” supported 

by substantial evidence in the record. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 

In deciding weight to give any medical opinion, the ALJ considers not only 

whether the source has a treating or examining relationship with the claimant, but also 

whether the treatment or examination is related to the alleged disability, the length of the 

relationship, frequency of examination, supporting evidence provided by the source, and 

medical specialization of the source. 20 C.F.R. § 404.1527(c). Generally, more weight is 

given to the opinion of a specialist about medical issues related to his area of specialty 

than to the opinion of a source who is not a specialist. 20 C.F.R. § 404.1527(c)(5). The 

ALJ may discount a physician’s opinion that is based only the claimant’s subjective 

complaints without objective evidence. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 

1190, 1195 (9th Cir. 2004). The opinion of any physician, including that of a treating 

physician, need not be accepted “if that opinion is brief, conclusory, and inadequately 

supported by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 

1228 (9th Cir. 2009). 

2. Treating Psychiatrist Katherine Cheeves, M.D. 

Plaintiff contends she has severe mental impairment due to her stroke on March 

25, 2010, and by her anxiety and depression. Dr. Cheeves’ responses on the October 5, 

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2012 Mental Impairment Questionnaire, which covered the period from 2011 to October 

5, 2012, are inconsistent with her treatment notes. On March 31, 2011, Dr. Cheeves 

noted that Plaintiff reported she was doing well, was tolerating full-time employment, 

and maintaining good concentration and stress tolerance. Dr. Cheeves observed Plaintiff 

had organized thoughts and good concentration and attention. On June 9, 2011, Dr. 

Cheeves observed that Plaintiff was alert, had good concentration, and had good work 

functioning. Plaintiff reported feeling well. On September 16, 2011, Dr. Cheeves noted 

that Plaintiff was coping with job loss, her anxiety/depression symptoms had increased, 

and she was unable to afford medication without insurance coverage. Dr. Cheeves also 

noted that Plaintiff had decreased concentration, had lost ability to concentrate on reading 

for a period, and now was reading again. On November 4, 2011, Dr. Cheeves noted that 

Plaintiff was generally feeling well and her prescribed medication was effective with no 

side effects. On February 3, 2012, Dr. Cheeves reported Plaintiff had not been feeling as 

well in the last month after a prolonged upper respiratory infection, her mood had been 

variable depending on continued stressors, and her affect was “a bit restricted.” At each 

of these office visits, Plaintiff demonstrated adequate insight and judgment. At each 

office visit except for February 3, 2012, Dr. Cheeves reported Plaintiff’s affect as 

euthymic, i.e., normal, non-depressed, reasonably positive. 

The ALJ did not err by considering and giving little weight to Dr. Cheeves’ 

October 5, 2012 Mental Impairment Questionnaire. On the Questionnaire, Dr. Cheeves 

described Plaintiff’s symptoms as poor energy, limited concentration because of anxiety, 

rapid mood changes, and poor stress tolerance. Dr. Cheeves opined that Plaintiff’s 

psychiatric symptoms exacerbated her chronic pain symptoms, and her impairments 

would cause Plaintiff to be absent from work more than three times per month. The form 

listed 25 work-related mental abilities and aptitudes and requested an explanation with 

medical/clinical findings for each ability or aptitude rated fair or poor. Dr. Cheeves rated 

Plaintiff as fair or poor on 24 of the 25 items and gave only the following general 

explanation: “associated/secondary to clinical depression/stroke.” Dr. Cheeves opined 

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that Plaintiff had marked restriction of activities of daily living, marked difficulties in 

maintaining social functioning, frequent deficiencies of concentration, and three or more 

episodes of deterioration or decompensation in work or work-like settings. However, Dr. 

Cheeves opined that Plaintiff does not have a low I.Q. or reduced intellectual functioning. 

The ALJ provided clear and convincing reasons for giving little weight to Dr. 

Cheeves’ opinion. He found that Dr. Cheeves’ opinion is inconsistent with her treatment 

notes and the entire record of evidence. Dr. Cheeves’ opinion stated Plaintiff had three or 

more episodes of deterioration or decompensation, yet Dr. Cheeves had not documented 

any psychiatric hospitalization. The ALJ also found that Dr. Cheeves’ treatment notes 

are consistent with his findings. Dr. Cheeves’ treatment notes showed that Plaintiff 

received routine and conservative mental health treatment and reported feeling better 

with her prescription medications. Further, the record showed no evidence that Plaintiff 

was restricted in activities of daily living, social functioning, or concentration, or had 

experienced periods of decompensation of extended duration. 

3. Psychological Consultative Examiner Shannon Tromp, Ph.D. 

The ALJ gave some weight to Dr. Tromp’s opinion. He did not give her opinion 

full weight because it relies on Plaintiff’s subjective allegations rather than Dr. Tromp’s 

examination findings and is inconsistent with the objective record. Dr. Tromp assessed 

Plaintiff’s affect as cheerful and animated, her memory fair, her attention and 

concentration good, comprehension fair, her estimated intellect low average, and her 

judgment and insight good. Dr. Tromp said that Plaintiff reported depression and anxiety 

but did not manifest those symptoms during the examination. Dr. Tromp opined that 

Plaintiff’s childlike grammar during the interview likely was a decline from her speech 

before the stroke because she must have had better language skills to work as a kitchen 

designer at Lowe’s. Dr. Tromp observed mild deficits with “speech, memory and 

perhaps with adhering to a schedule.” She observed no problems with sustained 

concentration and persistence, social interaction, or adapting to change. Dr. Tromp did 

not find Plaintiff has severe impairments. 

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Therefore, the ALJ did not err in weighing medical source opinion evidence. 

B. The ALJ Provided Clear and Convincing Reasons for Discrediting 

Plaintiff’s Symptom Testimony. 

If a claimant’s statements about pain or other symptoms are not substantiated by 

objective medical evidence, the ALJ must consider all of the evidence in the case record, 

including any statement by the claimant and other persons, concerning the claimant’s 

symptoms. SSR96-7p. The ALJ must consider all of the evidence presented, including 

the claimant’s daily activities; the location, duration, frequency, and intensity of the pain 

or other symptoms; factors that precipitate and aggravate the symptoms; effectiveness 

and side effects of any medication taken to alleviate pain or other symptoms; treatment 

other than medication; any measures other than treatment the claimant uses to relieve 

pain or other symptoms; and any other factors concerning the claimant’s functional 

limitations and restrictions due to pain or other symptoms. Id. Then the ALJ must make 

a finding on the credibility of the claimant’s statements about symptoms and their 

functional effects. Id. 

In evaluating the credibility of a claimant’s testimony regarding subjective pain or 

other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine 

whether the claimant presented objective medical evidence of an impairment that could 

reasonably be expected to produce some degree of the pain or other symptoms alleged; 

and, if so with no evidence of malingering, (2) reject the claimant’s testimony about the 

severity of the symptoms only by giving specific, clear, and convincing reasons for the 

rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). In making a credibility 

determination, an ALJ “may not reject a claimant’s subjective complaints based solely on 

a lack of objective medical evidence to fully corroborate the claimant’s allegations.” 

Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (internal 

quotation marks and citation omitted). But “an ALJ may weigh inconsistencies between 

the claimant’s testimony and his or her conduct, daily activities, and work record, among 

other factors.” Id. 

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The ALJ summarized Plaintiff’s testimony and reports as claiming that her 

impairments cause difficulty with exertional and nonexertional, postural, mental, and 

daily activities; difficulty with experiencing numbness, thinking and speaking, hearing, 

sleeping, panic attacks, concentrating, isolating at home, and working; dyslexia; panic 

attacks four or five times a week; crying spells four times a month; and day-long 

headaches three or four times a week causing blurred vision. The ALJ found Plaintiff’s 

allegations are not fully credible because they are inconsistent with her ability to 

participate in numerous activities. The ALJ noted that Plaintiff acknowledged she is 

capable of washing dishes, taking a shower, reading, doing brain games, using a 

computer, watching television, feeding pets, performing personal care, preparing simple 

meals, light dusting, washing dishes, driving a car, shopping in stores, talking on the 

telephone, walking short distances, and following written instructions. The ALJ also 

noted that Plaintiff’s allegations of impairment are inconsistent with the medical evidence 

of record. 

Therefore, the ALJ did not err in finding Plaintiff’s subjective symptom testimony 

less than fully credible. 

C. The ALJ Did Not Err in Weighing Third-Party Reports. 

Plaintiff contends that the ALJ committed legal error by discounting third-party 

reports. When an ALJ discounts the testimony of lay witnesses, he must give reasons 

that are germane to each witness. Valentine v. Comm’r of Soc. Sec., 574 F.3d 685, 693-

94 (9th Cir. 2009). 

The ALJ considered third-party function reports submitted by Plaintiff’s daughter 

and granddaughter and found them credible only to the extent they were consistent with 

the ALJ’s findings based on other evidence. On April 4, 2012, Plaintiff’s daughter 

reported that Plaintiff’s daily activities were: “picks up house, feed cat, watch TV, takes 

walk (short), reads.” Plaintiff’s daughter also reported that Plaintiff was able to prepare 

sandwiches, soups, and frozen dinners, do house chores, drive, shop for groceries, go out 

alone, pay bills, count change, and use a checkbook. Plaintiff’s daughter reported that 

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Plaintiff can understand instructions but gets confused, has trouble concentrating, and has 

panic attacks. She also reported that Plaintiff reads, watches television, and plays “brain 

games” on an electronic tablet every day, and her reading was improving. 

On January 15, 2013, Plaintiff’s granddaughter reported that Plaintiff’s daily 

activities were: “reads, watches television, talks on the phone, plays games for the brain 

on the computer.” Plaintiff’s granddaughter also reported that Plaintiff was able to 

prepare microwavable food items, crock pot dinners, soups, and simple sandwiches. 

Plaintiff’s granddaughter said Plaintiff cannot cook and bake because she cannot stand 

for long periods. Plaintiff’s granddaughter reported Plaintiff can pay bills, count change, 

use a checkbook, drive, and understand written instructions, but does not remember 

spoken instructions. Plaintiff’s granddaughter also reported that Plaintiff fears leaving 

her home and does not handle stress well. 

The ALJ gave reasons germane to the reports of Plaintiff’s daughter and 

granddaughter for discounting those reports. The ALJ found that Plaintiff’s daughter and 

granddaughter made allegations similar to those made by Plaintiff, which he found not 

fully credible. The ALJ generally observed that lay opinions are less persuasive than the 

opinions of medical professionals and the opinions of family members are not unbiased. 

The ALJ specifically found that the opinions of Plaintiff’s daughter and granddaughter 

are not supported by the clinical or diagnostic medical evidence in the record. 

In addition, Plaintiff contends the ALJ erred by giving unstated weight to 

statements by Defendant’s field office worker and Plaintiff’s former employer. 

Defendant’s field officer worker interviewed Plaintiff by telephone and observed that she 

had no difficulty with hearing, reading, breathing, understanding, coherency, 

concentrating, and talking, but some difficulty answering. He stated that it took her a few 

minutes to remember some dates, but “other than that seems ok.” Defendant’s field 

office worker’s observations do not support finding Plaintiff is disabled. 

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Plaintiff’s employment records include documentation of “mid-year conversation 

comments” dated August 5, 2010, which appears to be the equivalent of a performance 

review. Under various categories, Plaintiff’s supervisor wrote the following comments: 

Sue is excellent with her customers but she is frequently giving incorrect 

information on product and services to the customers. I expect better 

productivity and efficiency in 2011. 

Sue is engaged with the customers and she is very friendly and personable 

with all of them. 

Sue is good at getting vendors in to fix and put up new displays. I would 

like to see more department display maintenance from Sue in 2011, i.e., 

cleaning, replacing bulbs, etc. 

Sue is great with the customers that come to her. She needs to actively seek 

her customers. I think Sue would capitalize on a lot of sales if she was 

more proactive with the selling process. I feel that Sue does what is needed 

day to day and does not go above and beyond to ensure maximized sales. 

Again, Sue is very engaged with the customers that come to her. I believe 

that she does build a good relationship with her customers. She does need 

to improve on her resolution of issues in 2011. 

Sue is extremely knowledgeable with all of the product in cabinets and 

countertops. She is familiar with all of the services as well but I would like 

to see improvement on credit, SOS, and installs in 2011. 

Sue is great with her customers but she is continuously having 

communication issues with either the installer, customers, or vendors which 

cause issues and unhappy customers. She needs to take more time and pay 

more attention to detail in the selling process so we don’t have mistakes 

and issues to resolve. 

Plaintiff’s supervisor’s comments do not support finding Plaintiff is disabled. 

In summary, the ALJ did not err in weighing third-party reports by Plaintiff’s 

daughter and granddaughter. To the extent the ALJ should have stated the weight he 

gave to the statements by Defendant’s field office worker and Plaintiff’s former 

employer, any such error is harmless because they do not support finding Plaintiff is 

disabled. 

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IT IS THEREFORE ORDERED that the final decision of the Commissioner of 

Social Security is affirmed. The Clerk shall enter judgment accordingly and shall 

terminate this case. 

Dated this 12th day of December, 2016. 

Neil V. Wake

Senior United States District Judge 

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