1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Danny Ray Walker, Jr., 

Plaintiff, 

v. 

Carolyn W Colvin, 

Defendant. 

No. CV15-02468-PHX-DGC

ORDER 

Plaintiff Danny Ray Walker, Jr. seeks review under 42 U.S.C. § 405(g) of the final 

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

him supplemental security income under sections 216(i), 223(d), and 1614(a)(3)(A) 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. 

On July 20, 2012 Plaintiff applied for supplemental security income, alleging 

disability beginning June 24, 2011. On January 7, 2014, he appeared with his attorney 

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

March 10, 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 decision, making the ALJ’s decision the Commissioner’s final decision. 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 1 of 15
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

II. Legal Standard. 

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). The 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, but less than a 

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

support a conclusion considering the record as a whole. Id. In determining whether 

substantial evidence supports a decision, the court must consider the record as a whole 

and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 

As a general rule, “[w]here the evidence is susceptible to more than one rational 

interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 

upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 

Harmless error principles apply in the Social Security Act context. Molina v. 

Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains 

substantial evidence supporting the ALJ’s decision and the error does not affect the 

ultimate nondisability determination. Id. The claimant usually bears the burden of 

showing that an error is harmful. Id. at 1111. 

The ALJ is responsible for resolving conflicts in medical testimony, determining 

credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 

1995). In reviewing the ALJ’s reasoning, the court is “not deprived of [its] faculties for 

drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. 

Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 

III. The ALJ’s Five-Step 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 at step five the burden shifts to the 

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

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 2 of 15
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

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 (“RFC”) 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 RFC, 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 has not engaged in substantial gainful 

activity since July 20, 2012. A.R. 19. At step two, the ALJ found that Plaintiff has the 

following severe impairments: bilateral chondromalacia patella and cervical and lumbar 

degenerative disc disease. Id. At step three, the ALJ determined that Plaintiff does not 

have an impairment or combination of impairments that meets or medically equals an 

impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. Id. at 21. At step 

four, the ALJ found that Plaintiff has the RFC to perform: 

Sedentary work as defined in 20 CFR 416.967(a) except 

lifting and/or carrying a maximum of 20 pounds occasionally 

and 10 pounds frequently; standing and/or walking 4 hours in 

an 8-hour workday; sitting 6 hours in an 8-hour workday; but 

needs a sit/stand at will option; pushing and pulling within 

these weight restrictions; never climb ladders, ropes, or 

scaffolds; occasionally climb ramps and stairs, kneel, crouch, 

and crawl; frequently balance and stoop; and he needs to 

avoid concentrated exposure to hazards. 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 3 of 15
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Id. The ALJ further found that Plaintiff has no past relevant work. Id. at 27. At step 

five, the ALJ concluded that, considering Plaintiff’s age, education, work experience, and 

residual functional capacity, there are jobs that exist in significant numbers in the national 

economy that Plaintiff could perform. Id. at 27-28. 

IV. Analysis. 

Plaintiff argues that the ALJ’s decision is defective for three reasons: (1) the ALJ 

failed to properly weigh medical source opinions, (2) the ALJ failed to properly weigh 

Plaintiff’s reported limitations, (3) the ALJ did not properly weigh the report of 

Plaintiff’s mother, Gayla Walker. Doc. 21. The Court will address each argument. 

A. Weighing of Medical Source Evidence. 

Plaintiff argues that the ALJ improperly weighed the medical opinions of Dr. 

Abram Burgher and Dr. Larry Stark. 

1. Legal Standard 

The Ninth Circuit distinguishes between the opinions of treating physicians, 

examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 

830 (9th Cir. 1995). Generally, an ALJ should give greatest weight to a treating 

physician’s opinion and more weight to the opinion of an examining physician than to 

one of a non-examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th 

Cir. 1995); see also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when 

evaluating opinion evidence, including length of examining or treating relationship, 

frequency of examination, consistency with the record, and support from objective 

evidence). If it is not contradicted by another doctor’s opinion, the opinion of a treating 

or examining physician can be rejected only for “clear and convincing” reasons. Lester, 

81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A 

contradicted opinion of a treating or examining physician “can only be rejected for 

specific and legitimate reasons that are supported by substantial evidence in the record.” 

Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043). 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 4 of 15
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

An ALJ can meet the “specific and legitimate reasons” standard “by setting out a 

detailed and thorough summary of the facts and conflicting clinical evidence, stating his 

interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th 

Cir. 1986). But “[t]he ALJ must do more than offer his conclusions. He must set forth 

his own interpretations and explain why they, rather than the doctors’, are correct.” 

Embrey, 849 F.2d at 421-22. The Commissioner is responsible for determining whether a 

claimant meets the statutory definition of disability and does not give significance to a 

statement by a medical source that the claimant is “disabled” or “unable to work.” 20 

C.F.R. § 416.927(d). 

2. Abram Burgher, M.D. and Larry Stark, D.O. 

The opinions of Drs. Burgher and Stark were contradicted by the opinions of Drs. 

Karen Mansfield-Blair, Ph.D., Monte Jones, M.D., and Jensine Wright, M.D., each of 

whom opined that Plaintiff had greater abilities than those identified by Burgher and 

Stark. The ALJ could therefore discount the Burgher and Stark opinions for specific and 

legitimate reasons supported by substantial evidence. Lester, 81 F.3d at 830-31. 

Drs. Burgher and Stark each completed a “Medical Assessment of Ability to do 

Work-Related Physical Activity” form and concluded that Plaintiff could not perform 

even sedentary work and would miss more than six days of work each month due to pain 

and fatigue. A.R. 543-46. Dr. Mansfield-Blair examined Plaintiff and found “no 

impairment” in completing a mental status examination, and that Plaintiff “has no 

problem attending to instructions, recalling details later, even after performing a 

distractor task, and is able to hold and manipulate information.” Id. at 341. Dr. Jones 

performed two consultative examinations of Plaintiff and found that he had no limitations 

in his ability to sit and could stand or walk four hours a day. Id. at 455-57. Dr. Wright, a 

non-examining Physician who reviewed Plaintiff’s file, largely agreed with Dr. Jones, but 

opined that Dr. Jones was too restrictive and that Plaintiff could actually stand or walk up 

to six hours a day. Id. at 115-116. 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 5 of 15
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

The ALJ afforded “little weight” to the opinions of Drs. Burgher and Stark for 

several reasons: (1) “they are brief, conclusory, and inadequately supported by clinical 

findings” (id. at 25); (2) they opined on whether Plaintiff was able to work, “an issue 

reserved for the Commissioner” (id. at 26); (3) they “primarily summarized in the 

treatment notes the claimant’s subjective complaints, diagnoses, and treatment, but they 

did not provide medically acceptable clinical or diagnostic findings to support the 

functional assessment” (id.); (4) the opinions “are inconsistent with the objective medical 

findings as a whole” (id.); (5) their “own reports fail to reveal the type of significant 

clinical and laboratory abnormalities one would expect if the claimant were in fact 

disabled” (id.); (6) their opinions did not address conflicting information, such as 

Plaintiff’s own reports that his medication regimen had been working quite well and that 

he obtained functional relief with low-dose opiates (id.). 

These conclusions are preceded by several pages of careful analysis of Plaintiff’s 

medical condition and records. The ALJ cites treatment notes (id. at 22), describes the 

results of physical examinations (id. at 24), and describes the results of medication, 

medical treatments, and x-rays (id. at 22-25). With few exceptions, examination findings 

throughout the record show that Plaintiff had full strength, normal coordination, intact 

sensation, normal gait, and no distress. See id. at 363, 369, 372, 400-01, 404-05, 451-53, 

477-80, 482-83, 485-86. Although Plaintiff consistently self-reported pain levels at the 

top end of the scale, positive findings of pain were limited to “pain elicited by motion of 

the knee” and “tenderness on palpitation of the cervical spine. Id. at 477. As the ALJ 

noted, neither Dr. Burgher nor Dr. Stark attempt to reconcile such clinical findings with 

the limitations they recommend. It was not unreasonable for the ALJ to conclude that the 

clinical findings are not consistent with Drs. Burgher and Stark’s view that Plaintiff 

cannot sit or stand for more than two hours a day and that Plaintiff’s pain and fatigue are 

so severe that it would cause him to miss more than six days of work each month. 

Nor was it unreasonable for the ALJ to give greater weight to the more thorough, 

better explained medical opinions of Drs. Jones and Wright over the conclusory forms 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 6 of 15
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

provided by Drs. Burgher and Stark. Dr. Wright reviewed and considered the clinical 

findings, and found that Plaintiff could perform light work with some postural and 

environmental restrictions. Id. at 108-14. As the ALJ noted, Dr. Jones’ opinion was 

based on his notes from two examinations of Plaintiff and was largely consistent with the 

findings of Dr. Wright. Id. at 25, 452-57. 

Plaintiff argues that the forms submitted by Drs. Burgher and Stark are not 

conclusory because they are supported by treatment records. Doc. 21 at 9. But the 

treatment records are substantially a recitation of Plaintiff’s personal complaints. 

See, e.g., A.R. 426-29 (listing Plaintiff’s complaints with no objective evaluation). 

Additionally, as the ALJ noted (id. at 26), the opinions of Drs. Burgher and Stark provide 

no explanation or reasoning for their conclusions. When a medical opinion offers no 

reasoning and cites no clinical evidence, the opinion is more like a claimant’s self-report 

than a reasoned medical opinion. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th 

Cir. 2008) (“An ALJ may reject a treating physicians opinion if it is based ‘to a large 

extent’ on a claimant’s self-reports that have been properly discounted as incredible.”). 

As discussed below, the credibility of Plaintiff’s reports was properly discounted by the 

ALJ. Accordingly, the ALJ did not err in also discounting the conclusory opinions of 

Drs. Burgher and Stark that are largely based on those same self-reports. 

Plaintiff argues the ALJ erred by failing to cite to the record in support of her 

conclusion that the treating source opinions are unsupported by “the objective medical 

evidence as a whole.” Id. at 26. But this statement by the ALJ is followed by the words 

“already discussed above in this decision” (id.), and, as noted above, the ALJ engaged in 

a thorough discussion of the medical evidence (id. at 22-26). What is more, the ALJ 

further explains her conclusion by noting that the treating physicians failed to address 

evidence in the record conflicting with their opinions: 

For example, treatment notes show that [Plaintiff] reported that he was 

doing fairly well on his current medication regimen and it has been working for him quite well [id. at 405]. In February, April, June, and August 2013, [Plaintiff] reported that he continued to obtain good functional relief and limited side effects with low-dose opiates [id. at 417, 421, 466, 470]. 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 7 of 15
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Id. at 26 (citations to record updated from original). 

 The ALJ also notes that the treatment notes underlying the treating physician’s 

opinions are made up largely of Plaintiff’s subjective complaints, diagnoses, and 

treatment history, but the notes provide no diagnostic findings or clinical support for the 

treating physicians’ ultimate recommendations. Id. Plaintiff argues that the ALJ “cherry 

picked” evidence from the record to present Plaintiff as not disabled. Doc. 21 at 10-11. 

The Court disagrees. The ALJ’s opinion considers all evidence in the record, including 

evidence that would seem to support the opinions of Drs. Burgher and Stark, such as 

findings of pain, an antalgic gait, and instances of failed treatment, but these findings 

were the exception throughout the record, not the norm. A.R. 24. 

Plaintiff criticizes the ALJ for rejecting the opinions of Drs. Burgher and Stark 

because they addressed an issue reserved for the Commissioner. Doc. 21 at 12. By 

regulation, however, opinions on whether a claimant is disabled are entitled to no special 

weight. 20 C.F.R. § 416.927(d). Plaintiff argues that Drs. Burgher and Stark did not 

speak to whether Plaintiff was disabled, but rather opined only as to specific functional 

limitations such as his ability to sit, stand, walk, lift, and carry. But both concluded that 

Plaintiff cannot “perform work.” A.R. 543, 545. This legal conclusion is entitled to no 

special weight, and it was not error for the ALJ to reject it. See 20 C.F.R. § 416.927(d). 

Plaintiff also argues that the ALJ erred by rejecting the opinions of Drs. Burgher 

and Stark based on a finding that they were overly sympathetic and potentially motivated 

by a desire to avoid doctor/patient conflict. Doc. 21 at 12. The Commissioner agrees 

that such reasoning is not an adequate basis to reject a treating physician’s opinion, but 

argues that in this case the error is harmless because the ALJ’s decision notes that the 

opinions of Drs. Burgher and Stark “depart[] substantially from the rest of the evidence in 

the record.” Doc. 22 at 13. The Court agrees. Given the specific and legitimate reasons 

the ALJ did provide, her comments on the doctors’ possible motives does not invalidate 

her opinion. 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 8 of 15
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Plaintiff next argues that “the ALJ’s statement that there were no ‘abnormal’ 

objective findings is inaccurate.” Doc. 21 at 14. Plaintiff cites to the “January 2013 CT 

scan of the cervical spine which revealed C3-4 moderate left foraminal stenosis and C5-6 

bilateral foraminal stenosis and mild central canal narrowing with broad-based disc 

osteophyte complex formation.” Id. But the ALJ’s decision acknowledges these results. 

A.R. 24. What is more, the opinions of Drs. Burgher and Stark offer no interpretation of 

the January 2013 CT scans; Dr. Wright’s opinion, however, did consider these images, 

and then recommended an RFC less restrictive than the one ultimately adopted by the 

ALJ. Id. at 111-13. 

Lastly, Plaintiff argues that “the ALJ’s claim that there was no finding of ‘atrophy 

or possibly deconditioning’ is insufficient to reject Drs. Burgher and Stark’s 

assessments.” Doc. 21 at 14. But the ALJ does not rely merely on the lack of atrophy or 

deconditioning as her basis for rejecting the opinions. She provides a number of other 

specific reasons. A.R. 25-26. As discussed above, although Plaintiff consistently 

complained of pain at the top end of the pain scale, his examinations often conflicted with 

such reports and found pain only when Plaintiff moved his knee or had a palpitation in 

his back. See, e.g., id. at 477. Dr. Wright discussed the significance of this discrepancy. 

Id. at 111-13. The Court cannot conclude that the ALJ erred by relying on the other 

medical opinions rather than the brief and conclusory opinions provided by Drs. Burgher 

and Stark. 

3. Crediting Non-Treating Physicians. 

Plaintiff argues that the ALJ committed legal error by according the opinions of 

Drs. Jones and Wright significant weight. Doc. 21 at 15-17. As discussed above, 

however, the ALJ provided specific and legitimate reasons, drawn from the medical 

record, to justify her decision to credit these opinions over those of Plaintiff’s treating 

physicians. Because the opinion of Dr. Wright was supported by independent clinical 

findings, it constituted substantial evidence. Thomas, 278 F.3d at 957 (“The opinions of 

non-treating or non-examining physicians may also serve as substantial evidence when 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 9 of 15
- 10 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

the opinions are consistent with independent clinical findings or other evidence in the 

record.”) (citation omitted). Dr. Jones’ opinion was based on a more limited review of 

the record, but was the result of two direct examinations of Plaintiff and was consistent 

with other examination findings in the record. The Court concludes that the ALJ’s 

decision to credit these opinions was not legal error. 

Plaintiff argues that Drs. Jones and Wright could not have reviewed the record in a 

meaningful way because one opinion, that of Mona Amin, D.O., was not given until after 

Dr. Jones completed his examinations and after Dr. Wright had issued her opinion. 

Doc. 21 at 17. But nothing in Dr. Amin’s report is inconsistent with the prior records 

reviewed by Dr. Wright or with the findings of Dr. Jones. Dr. Amin noted that Plaintiff 

complained of constant pain, but examination found normal extremities with no swelling. 

A.R. 485-86. The only positive pain findings were that the “[c]ervical spine showed 

tenderness on palpation,” and “[p]ain was elicited by motion of the knee.” Id. The ALJ 

did not commit error by relying on the opinions of Drs. Jones and Wright. 

B. The ALJ Did Not Err in Evaluating Plaintiff’s Credibility. 

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). 

The Social Security Administration recently issued Social Security Ruling 16-3p, 

2016 WL 1119029 (March 16, 2016) (“SSR 16-3p”), which provides new guidance for 

ALJs to follow when evaluating a disability claimant’s statements regarding the intensity, 

persistence, and limiting effects of symptoms. SSR 16-3p replaces Social Security 

Ruling 96-7p, 1996 WL 374186 (July 2, 1996) (“SSR 96-7p”). SSR 16-3p eliminates the 

term “credibility” used in SSR 96-7p in order to “clarify that subjective symptom 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 10 of 15
- 11 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

evaluation is not an examination of the individual’s character.” SSR 16-3p, 2016 WL 

1119029, at *1. Although SSR 16-3p was issued after the ALJ's March 2016 decision, it 

is consistent with Social Security’s prior policies and with prior Ninth Circuit case law. 

Both policies set forth a two-step process to be followed in evaluating a claimant’s 

testimony and contain the same factors to be considered in determining the intensity and 

persistence of a claimant’s symptoms. Because 16-3p clarifies rather than changes 

existing law, the Court will consider the ALJ’s evaluation of Plaintiff’s subjective 

complaints in light of SSR 16-3p. 

The ALJ engaged in the two-step process. She first found that Plaintiff’s 

medically determinable impairments could reasonably be expected to cause the alleged 

symptoms. She then found Plaintiff’s statements regarding the intensity, persistence, and 

limiting effects of the symptoms not credible to the extent they are inconsistent with the 

ALJ’s residual functional capacity assessment. In other words, the ALJ found Plaintiff’s 

statements not credible to the extent he claims he is unable to perform in a competitive 

work environment. 

At the January 2014 hearing, Plaintiff testified that his neck pain caused numbness 

in his right arm and hand, his back and knee pain was constant, and he was forced to 

“alternate between sitting up, laying down, you know, sitting sideways” after short 

periods of time. A.R. 44-45. Plaintiff stated that his pain averages 8 out of 10, even with 

medication, and half of the time he can only think about the pain. Id. at 54. Plaintiff 

testified that he cannot lift more than ten pounds or sit more than 20 minutes, and has 

problems using his hands. Id. at 45, 50, 55-56. Plaintiff also testified that he showers 

unassisted, does his own laundry, tries to do the dishes, sweeps, goes to the grocery store, 

and drives with some discomfort. Id. at 51-52, 58. Plaintiff stated that he spends the day 

trying not to be in pain, has no social life, but enjoys writing poetry, watching television, 

and going to the lake. Id. at 58, 63-65. 

The ALJ gave the following reasons for finding Plaintiff’s testimony not fully 

credible: (1) Plaintiff’s activities demonstrate the physical and mental abilities and social 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 11 of 15
- 12 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

interactions necessary to obtain and maintain employment and are inconsistent with the 

presence of an incapacitating or debilitating condition, (2) Plaintiff’s medical record 

reveals that treatment and medications have been generally successful in controlling his 

symptoms, (3) Plaintiff last worked in 2003, some eight years before filing for SSI in 

2011, and he stopped working because he was laid off. Id. at 22-23. The Court finds that 

the ALJ did not err in evaluating Plaintiff’s credibility. 

The ALJ found that “claimant’s allegations concerning the intensity, persistence 

and limiting effects of his symptoms are less than fully consistent and credible.” A.R. 22. 

She found that some of Plaintiff’s daily activities “are inconsistent with the presence of 

an incapacitating or debilitating condition.” Id. This was not error. Plaintiff testified 

that he is in constant pain that averages 8 out of 10 in severity, that half the time he can 

only think about pain, and that during the day he just tries not to be in pain and has no 

social life. Id. The ALJ noted, however, that Plaintiff drives, goes to the grocery store, 

cares for his personal needs, performs some chores, does his own laundry, enjoys going 

to the lake, and has travelled in a limited manner with his fiancé. Id. These daily 

activities do not constitute a basis for concluding that Plaintiff is not disabled – complete 

incapacitation is not required before benefits are available – but such activities may be 

considered when evaluating Plaintiff’s testimony of daily debilitating pain. Molina, 674 

F.3d at 1113 (“The ALJ could reasonably conclude that Molina's activities, including 

walking her two grandchildren to and from school, attending church, shopping, and 

taking walks, undermined her claims that she was incapable of being around people 

without suffering from debilitating panic attacks.”). The Court concludes that this was a 

legitimate and specific reason for discounting Plaintiff’s testimony.1

 

1

 The ALJ also concluded that Plaintiff’s daily activities were akin to those required to work. A.R. 22. The Commissioner concedes that this conclusion is 

unwarranted (Doc. 22 at 21), but the Court does not find that it invalidates the ALJ’s 

entire conclusion. The ALJ also considered Plaintiff’s daily activities as inconsistent with Plaintiff’s own testimony about his limitations (A.R. 22), a credibility consideration that is appropriate. See Molina, 674 F.3d at 1113. 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 12 of 15
- 13 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

The ALJ noted that Plaintiff responded positively to treatment and medication for 

his impairments. Id. at 22. Plaintiff argues that these reports represent only short periods 

of relief, and do not indicate a successful treatment. Doc. 21 at 21-22. As mentioned 

above, however, examination findings throughout the record show that Plaintiff had full 

strength, normal coordination, intact sensation, normal gait, and no distress. A.R. 363, 

369, 372, 400-01, 404-05, 451-53, 477-80, 482-83, 485-86. The ALJ cites these portions 

of the record. Id. at 24-25. The ALJ also cites specific portions of the record showing 

that Plaintiff reported he was doing well on his medications, that in February, April, June, 

and August 2013 Plaintiff reported good functional relief from his medications, that he 

reported good relief from injections and excellent relief from cervical facet blocks, and 

that he reported improved pain from changes in his medications. Id. at 22-23, 24. The 

only evidence in the record that treatment and medication were not successful appears to 

be found in reports given by Plaintiff himself, but even these are inconsistent with other 

reports he gave his physicians. See id. at 470 (Dr. Burgher’s treatment notes indicating 

that Plaintiff says he “continues to obtain good functional relief and limited side effects 

with low-dose opiates.”); id. at 421 (“[Plaintiff] had excellent relief with cervical facet 

blocks.”); id. at 361(“[Plaintiff] reports improvement in pain with the change of his 

medication last month.”). The Court concludes that Plaintiff’s positive response to 

treatment and medication constitutes a specific, clear, and convincing reason provided by 

the ALJ for discounting his testimony, and that it is supported by substantial evidence. 

Orn, 495 F.3d at 630 (substantial evidence is more than a scintilla, less than a 

preponderance, and enough relevant evidence for a reasonable person to accept as 

adequate to support a conclusion, considering the record as a whole). 

The ALJ also noted that Plaintiff has not worked since 2003, some eight years 

before his disability date, and that he stopped working for reasons unrelated to medical 

impairments. A.R. 23. Plaintiff argues against this inference, stating that “medical 

illness does not inflict limitation on only those who have consistently worked,” and that 

Plaintiff has “tried to work.” Doc. 21 at 23. The Court is not persuaded that this was an 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 13 of 15
- 14 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

improper consideration by the ALJ. Plaintiff testified that he is not working because his 

medical condition prevents him from working. A.R. 43. And yet Plaintiff testified that 

he last worked in 2003 and that he stopped working because his hours were reduced and 

he was told he was not needed any more. Id. at 23. The ALJ did not err in noting that 

this evidence calls into question Plaintiff’s testimony that he is not working due to his 

medical disability.2 See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“Thomas 

had an ‘extremely poor work history’ and ‘has shown little propensity to work in her 

lifetime,’ which negatively affected her credibility regarding her inability to work.”). 

The Court finds that the ALJ provided specific, clear, and convincing reasons, 

supported by substantial evidence, to discount the credibility of Plaintiff’s testimony. 

C. The ALJ Did Not Err in Evaluating Third Party Credibility. 

If an ALJ wishes to discount the testimony of a lay witness, he must give reasons 

that are germane to each witness. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 

In September 2013, Plaintiff’s mother, Gayla Walker, completed a third-party function 

report. A.R. 290-97. The ALJ declined to rely on this report for several reasons: (1) it 

“appear[s] to be no more than an echoing of the subjective complaints already testified to 

by the claimant”; (2) the medical records and opinions of physicians show that Plaintiff’s 

limitations are not so limiting; and (3) Ms. Walker indicated that Plaintiff cannot sit or 

stand for more that 15-20 minutes, but this is inconsistent with Plaintiff’s daily activities 

of writing poetry and using a computer. Id. at 23. 

Plaintiff argues that Ms. Walker’s report is more credible because it is consistent 

with Plaintiff’s own testimony. Doc. 21 at 24. Plaintiff also argues that her report is 

supported by the medical opinions of Drs. Burgher and Stark, and that there is no 

evidence in support of the ALJ’s proposition that the reported limitations are inconsistent 

with writing poetry or using the computer. Id. 

 

2

 The Court does not agree with Plaintiff’s suggestion that this constitutes an 

improper focus on his character. The ALJ considered this evidence for its effect on the 

veracity of his testimony, noting that it “raises questions as to whether the claimant’s continuing unemployment is actually due to medical impairments” as he testified. 

A.R. 23. 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 14 of 15
- 15 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Plaintiff overstates the test for discounting Ms. Walker’s report. The ALJ must 

provide only “germane” reasons. See Lewis, 236 F.3d at 512 (“the ALJ at least noted 

arguably germane reasons for dismissing the family members’ testimony, even if he did 

not clearly link his determination to those reasons.”); Bayliss v. Barnhart, 427 F.3d 1211, 

1218 (9th Cir. 2005) (“An ALJ need only give germane reasons for discrediting the 

testimony of lay witnesses. Inconsistency with medical evidence is one such reason.”). 

The Court concludes that the ALJ provided germane reasons for discounting Ms. 

Walker’s report when he relied on the medical record and the opinions of other 

physicians. As discussed above, the ALJ described contradictions between Plaintiff’s 

testimony (largely echoed in Ms. Walker’s report) and the medical record, and gave 

appropriate reasons for choosing to credit the opinions of Drs. Jones and Wright. These 

were germane reasons for discounting the third party report. See Lewis, 236 F.3d at 512. 

V. Conclusion 

 The ALJ did not err in in discounting the weight of the treating physicians 

opinions, discounting the credibility of Plaintiff’s testimony, or discounting the weight of 

the third party report. Accordingly, the Court will affirm the decision. 

IT IS ORDERED that the final decision of the Commissioner of Social Security 

is affirmed. The Clerk shall enter judgment accordingly and terminate this case. 

Dated this 5th day of December, 2016. 

Case 2:15-cv-02468-DGC Document 24 Filed 12/05/16 Page 15 of 15