Conn v. Colvin

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
REBECCA JEAN CONN, )
)
Plaintiff, )
)
vs. )
)
CAROLYN W. COLVIN, acting )
Commissioner, Social Security )
Administration, )
) No. 3:14-cv-0188-HRH
Defendant. )
__________________________________________)
O R D E R
This is an action for judicial review of the denial of disability benefits under Title II
and Title XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff has
timely filed her opening brief,1 to which defendant has responded.2 Oral argument was not
requested and is not deemed necessary.
Procedural Background
Plaintiff is Rebecca J. Conn. Defendant is Carolyn W. Colvin, acting Commissioner
of Social Security.
1Docket No. 12.
2Docket No. 13.
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On March 21, 2011, plaintiff filed applications for disability benefits under Titles II
and XVI of the Social Security Act.3 Plaintiff alleged that she became disabled on February
1, 2009. Plaintiff alleged that she is disabled because of fibromyalgia, bipolar disorder,
migraines, major depression, and osteoarthritis. Plaintiff’s applications were denied
initially and upon reconsideration. A hearing on December 13, 2011 was continued in
order to allow plaintiff to obtain representation. A subsequent hearing on May 13, 2012
was also continued to provide plaintiff’s representative time to submit evidence in the
proper format. The next hearing was held on July 19, 2012, but this hearing was also
continued because of plaintiff’s representative’s unfamiliarity with the evidence regarding
plaintiff’s alcohol abuse. The next hearing was held on January 22, 2013, but this hearing
was also continued because the medical expert had not received all of the medical evidence
of record. Plaintiff, a medical expert, and a vocational expert finally testified at a hearing
on April 12, 2013. After the April 12, 2013 hearing, an administrative law judge (ALJ)
denied plaintiff’s claims. On August 1, 2014, the Appeals Council denied plaintiff’s request
for review, thereby making the ALJ’s May 13, 2013 decision the final decision of the
3Plaintiff had previously filed applications on September 10, 2010, alleging that she
was disabled due to major depression, bipolar disorder, osteoarthritis, chondromalacia,
bleeding ulcers, fibromyalgia, and short term memory loss. Admin. Rec. at 104. Plaintiff’s
September 2010 applications were denied and she did not seek any further administrative
review, instead filing new applications on March 21, 2011.
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Commissioner. On September 30, 2014, plaintiff commenced this action in which she asks
the court to find that she is entitled to disability benefits.
General Background
Plaintiff was born on July 23, 1970. She was 38 years old at the time of the April
2013 hearing. Plaintiff has a high school education and completed one year of college.
Plaintiff’s past relevant work includes work as a loan officer and a certified nurse’s aide.
The ALJ’s Decision
The ALJ first determined that plaintiff met “the insured status requirements of the
Social Security Act through March 31, 2013.”4
The ALJ then applied the five-step sequential analysis used to determine whether
an individual is disabled.5
4Admin. Rec. at 14.
5The five steps are as follows:
Step one: Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is not disabled. If not,
proceed to step two.
Step two: Is the claimant’s alleged impairment sufficiently
severe to limit ... her ability to work? If so, proceed to step
three. If not, the claimant is not disabled.
Step three: Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R.,
pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not,
proceed to step four.
Step four: Does the claimant possess the residual functional
(continued...)
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At step one, the ALJ found that plaintiff had “not engaged in substantial gainful
activity since February 1, 2009, the alleged onset date....”6
At step two, the ALJ found that plaintiff had “the following severe impairments:
gastroesophageal reflux disease (GERD), probable migraine headaches, depression with
bipolar spectra, probable cyclothymic disorder, and alcohol abuse/dependence....”7 The
ALJ found plaintiff’s stomach ulcers, osteoarthritis, obesity, chondromalacia, and
fibromyalgia non-severe.8
At step three, the ALJ found that plaintiff did “not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1....”9 The ALJ considered Listing
5(...continued)
capacity (“RFC”) to perform ... her past relevant work? If so,
the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant’s RFC, when considered with the
claimant’s age, education, and work experience, allow ... her to
adjust to other work that exists in significant numbers in the
national economy? If so, the claimant is not disabled. If not,
the claimant is disabled.
Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
6Admin. Rec. at 14.
7Admin. Rec. at 14.
8Admin. Rec. at 14-15.
9Admin. Rec. at 15.
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5.00 (gastrointestinal disorders), Listing 11.03 (epilepsy - nonconvulsive), Listing 12.04
(affective disorders), and Listing 12.09 (substance addiction disorders).10 The ALJ
considered the “paragraph B” criteria and found that plaintiff had moderate restriction of
activities of daily living, moderate difficulties in social functioning, moderate difficulties
with regard to concentration, persistence, or pace; and one or two episodes of extended
decompensation.11 The ALJ also considered the “paragraph C” criteria and found that “the
evidence fails to establish the presence of the ‘paragraph C’ criteria.”12
Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009).
The ALJ found that plaintiff had
the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except the
claimant is limited to occasional climbing of ladders, ropes or
scaffolds; must avoid moderate exposure to moving machin-
ery, hazardous machinery and unprotected heights; work
limited to 1- to 2-step repetitive tasks involving only simple
work-related decisions and work that would allow written,
more than verbal instructions; and involving only occasional
interaction with the general public.[13]
10Admin. Rec. at 15.
11Admin. Rec. at 15-16.
12Admin. Rec. at 17.
13Admin. Rec. at 18.
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The ALJ found plaintiff’s pain and symptom statements regarding the disabling
impact of her GERD and chronic headaches to be less than credible because they were not
supported by objective evidence and because plaintiff seldom sought treatment for these
conditions.14 The ALJ found plaintiff’s symptom statements as they pertain to her alleged
mental impairments less than credible because they are not supported by any
neuropsychological test results or other appropriate testing and they are not supported by
her treatment records.15 The ALJ also found plaintiff’s pain and symptom statements less
than credible because of plaintiff’s poor work history.16
The ALJ gave Dr. Lewy’s17 testimony “great weight as it relates to proper
diagnoses.”18 The ALJ also gave Dr. Lewy’s testimony as to plaintiff’s limitations19 great
14Admin. Rec. at 20.
15Admin. Rec. at 22.
16Admin. Rec. at 24.
17Arthur Lewy, a clinical psychologist, testified as a medical expert. Dr. Lewy
testified that plaintiff’s mental impairments were depression and alcohol abuse. Admin.
Rec. at 41. Dr. Lewy opined that plaintiff did not have a bipolar disorder because there was
very little evidence in the record of mania or hypomania. Admin. Rec. at 45. More
specifically, Dr. Lewy testified that plaintiff’s treating source records do not reflect manic
and hypomanic episodes. Admin. Rec. at 48.
18Admin. Rec. at 22.
19Dr. Lewy opined that plaintiff had “moderate limitations in daily living, social
functioning, and maintaining concentration, persistence and pace.” Admin. Rec. at 46.
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weight.20 The ALJ also found Dr. Lewy’s testimony that plaintiff’s limitations would not
change in the absence of alcohol abuse21 to be reasonable.22 The ALJ gave Dr. Feigin’s
opinion as to plaintiff’s mental limitations23 no weight and his opinion as to plaintiff’s
physical limitations24 limited weight.25 The ALJ gave limited weight26 to Dr. Winn’s
opinion.27 The ALJ found “the assisted living care eligibility criteria to have little bearing
20Admin. Rec. at 24.
21Dr. Lewy testified that plaintiff’s functional limitations would be the same with or
without alcohol use. Admin. Rec. at 47.
22Admin. Rec. at 23.
23On September 10, 2010, Ron Feigin, M.D., opined that plaintiff had mild limitations
in activities of daily living, social functioning, and maintaining concentration, persistence,
or pace, and one or two episodes of decompensation of extended duration. Admin. Rec.
at 627.
24On September 10, 2010, Ron Feigin, M.D., opined that plaintiff could occasionally
lift/carry 50 pounds, frequently lift/carry 25 pounds, stand/walk for 6 hours, sit for 6 hours,
could occasionally climb ladders and ropes but otherwise had no postural limitations, and
should avoid even moderate exposure to vibration. Admin. Rec. at 631-633.
25Admin. Rec. at 24.
26Admin. Rec. at 24.
27On April 26, 2011, Wandal Winn, M.D., opined that plaintiff was moderately
limited in her ability to understand/remember simple instructions; understand/remember/
carry out detailed instructions; maintain attention and concentration for extended periods;
perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances; sustain an ordinary routine without special supervision; complete
a normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and length
(continued...)
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on this case.”28 The ALJ gave limited weight to the lay testimony of Mr. Hooper29 and Ms.
Miller30 because they were not medical or mental health professionals, their statements
were not supported by the objective medical evidence, and their testimony suggested that
plaintiff was capable of a wide range of activities.31
At step four, the ALJ found that plaintiff “is unable to perform any past relevant
work....”32 This finding was based on the testimony of the vocational expert.33
27(...continued)
of rest periods; respond appropriately to changes in the work setting; and to set realistic
goals or make plans independently of others. Admin. Rec. at 714-715. Dr. Winn opined
that plaintiff “should be able to persist at simple unskilled work for the standard workweek
consisting of 8 hours per day, 40 hours per week. Her performance can be expected to
improve with abstinence from the use of alcohol. The claimant will need her goals and
plans set out for her. She will need moderate supervision to keep on task. She may tend
to take her maximum sick leave time.” Admin. Rec. at 716.
28Admin. Rec. at 25. Plaintiff qualified for the state Assisted Living Care Program
in 2010.
29On June 13, 2010, Robert Hooper, Jr., plaintiff’s fiancé, completed a third-party
function report. Admin. Rec. at 294-301.
30On March 31, 2012, Susan Hough Miller, the administrator of the Assisted Living
Facility where plaintiff resided, completed a third-party function report. Admin. Rec. at
361-368. On April 18, 2013, Miller responded to written questions posed by plaintiff’s
counsel. Admin. Rec. at 410-411.
31Admin. Rec. at 26.
32Admin. Rec. at 27.
33Patricia Ayerza testified as the vocational expert at the April 2013 hearing. Admin.
Rec. at 60-65.
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At step five, the ALJ found that “there are jobs that exist in significant numbers in
the national economy that the claimant could perform,” such as working as a hand
packager or a laundry worker.34 This finding was based on the vocational expert’s
testimony.
Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner....” The court “properly affirms the Commissioner’s decision denying
benefits if it is supported by substantial evidence and based on the application of correct
legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial
evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.
(quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether
substantial evidence supports the ALJ’s decision, [the court] review[s] the administrative
record as a whole, weighing both the evidence that supports and that which detracts from
the ALJ’s conclusion.’” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is
susceptible to more than one reasonable interpretation, the court must uphold the
Commissioner’s decision. Id. But, the Commissioner’s decision cannot be affirmed
34Admin. Rec. at 27-28.
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“‘simply by isolating a specific quantum of supporting evidence.’” Holohan v. Massanari,
246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999)).
Discussion
Plaintiff first appears to argue that the ALJ erred in labeling one of her severe
impairments as “depression with bipolar spectra” rather than as “a rapid-cycling form of
bipolar disorder.” Plaintiff contends that five treating psychiatrists diagnosed a rapid-
cycling form of bipolar disorder and she cites to the treatment records of Dr. Shafer, Dr.
Fisher, Dr. Terranella, Dr. Bay, and Dr. Goddard, all of whom treated plaintiff at
Anchorage Community Mental Health Services.
Dr. Shafer treated plaintiff from December 29, 2009 through June 16, 2010 and listed
plaintiff’s diagnosis as either bipolar depression; bipolar disorder, depressed; or bipolar
depressed.35 Dr. Shafer made no reference to “rapid-cycling bipolar disorder.” Dr. Fisher
treated plaintiff twice, once in August 2010 and once in September 2010.36 Dr. Fisher listed
plaintiff’s diagnosis as “Bipolar I disorder with both mania or depression with rapid-
cycling with predominant depression.”37 Dr. Terranella treated plaintiff from April 2011
35Admin. Rec. at 790-795.
36Admin. Rec. at 786-789.
37Admin. Rec. at 786 & 788.
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through August 2011 and listed plaintiff’s diagnosis as Bipolar I mixed or Bipolar I mixed
with rapid cycling, currently depressed.38 Dr. Bay treated plaintiff from September 2011
through June 2012 and listed plaintiff’s diagnosis as Bipolar Mixed; Bipolar I disorder, most
recent episode mixed, severe, without psychosis; or Bipolar, most recent episode mixed.39
Dr. Goddard treated plaintiff from December 11, 2012 through March 28, 2013 and listed
plaintiff’s diagnosis as Bipolar mixed or Bipolar I mixed.40
Plaintiff seems to suggest that it was error for the ALJ to accept the diagnosis of Dr.
Lewy, the medical expert, who opined that plaintiff had depression, rather than bipolar
disorder.41 But plaintiff does not explain what difference it would have made had the ALJ,
at step two, classified her mental impairment as “a rapid-cycling form of bipolar disorder”
rather than “depression with bipolar spectra.” As defendant points out, “[t]he classification
of mental disorders is not an exact science.” Ramirez v. Shalala, 8 F.3d 1449, 1453 (9th Cir.
1993). In addition, “the step-two inquiry is a de minimis screening device to dispose of
groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The ALJ did not
find plaintiff’s claim that she had a severe mental impairment groundless. Rather, the ALJ
38Admin. Rec. at 779-785.
39Admin. Rec. at 766-778 & 821-822.
40Admin. Rec. at 888-890.
41Admin. Rec. at 41.
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found that plaintiff had a severe mental impairment. But even if the ALJ erred in
classifying plaintiff’s mental impairment at step two, this error “could only have prejudiced
[plaintiff] in step three (listing impairment determination) or step five (RFC) because” step
two was decided in plaintiff’s favor. Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005).
Plaintiff also takes issue with the ALJ’s characterization that she had “probable
migraine headaches.” Plaintiff points out that she received medical treatment for her
migraines in September 200942 and September 2010,43 that the treatment notes from the
Alaska Psychiatric Institute44 indicated that she was having frequent migraines,45 and that
Dr. Bay was prescribing Topamax for her migraines.46 But, again, even if the ALJ erred in
referring to plaintiff’s migraine headaches as “probable”, this step-two error was harmless
because the ALJ found that plaintiff’s migraine headaches were a severe impairment.
Plaintiff next argues that the ALJ erred at step three by finding that she did not meet
Listing 12.04. Listing 12.04 is for affective disorders which are
[c]haracterized by a disturbance of mood, accompanied by a
full or partial manic or depressive syndrome. Mood refers to
42Admin. Rec. at 460.
43Admin. Rec. at 607.
44Plaintiff was admitted to API on November 14, 2009 after attempting suicide.
Admin. Rec. at 475-476.
45Admin. Rec. at 475-476.
46Admin. Rec. at 359.
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a prolonged emotion that colors the whole psychic life; it
generally involves either depression or elation. The required
level of severity for these disorders is met when the require-
ments in both A and B are satisfied, or when the requirements
in C are satisfied.
Plaintiff argues that she meets the “paragraph B” requirements.47 To meet the
“paragraph B” requirements, a claimant’s affective disorder must result in at least two of
the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persis-
tence, or pace; or
4. Repeated episodes of decompensation, each of extended
duration[.]
The ALJ found that plaintiff had moderate limitations in activities of daily living; moderate
difficulties with social functioning; moderate difficulties in maintaining concentration,
persistence, or pace; and one to two episodes of decompensation.48 These findings were
based on the opinions of Dr. Lewy and Dr. Winn.
Plaintiff argues that the ALJ erred in finding that she had only moderate limitation
in terms of activities of daily living because her testimony and Miller’s testimony
47There seems to be no disagreement that plaintiff meets the “paragraph A”
requirements. See Admin. Rec. at 719.
48Admin. Rec. at 15-16.
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established that when plaintiff is depressed, she does not leave her room, does not bathe
or comb her hair, sometimes does not eat, and needs to be reminded to take her
medication.49 Plaintiff also contends that the evidence shows that when she is in a manic
state, she seeks out excitement and drinks, runs off with men she just met, and does not act
appropriately on a sustained basis,50 which plaintiff suggests shows that she has a marked
limitation in terms of activities of daily living. Plaintiff also argues that the record shows
that she has marked difficulties with maintaining concentration, persistence, or pace. And,
plaintiff again cites to her testimony and the testimony of Susan Miller.51
The ALJ did not error in finding that plaintiff did not meet the “paragraph B”
criteria. The ALJ’s finding was supported by the opinions of Dr. Lewy and Dr. Winn. The
only evidence that plaintiff has cited to in support of her argument that she had marked
limitations is her testimony, which the ALJ found less than credible, a finding which
plaintiff does not challenge here, and Susan Miller’s testimony, to which, as will be
discussed below, the ALJ did not err in giving limited weight.
Plaintiff also argues that she meets the “paragraph C” requirements. In order to
meet the “paragraph C” requirements, plaintiff must first establish that she had a
49Admin. Rec. at 54 & 410-411.
50Admin. Rec. at 410-411.
51Admin. Rec. at 73, 97, 299 & 348.
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“[m]edically documented history of a chronic affective disorder of at least 2 years’ duration
that has caused more than a minimal limitation of ability to do basic work activities, with
symptoms or signs currently attenuated by medication or psychosocial support[.]” There
is no question that plaintiff has a medically documented history of a chronic affective
disorder of at least two years in duration or that plaintiff is receiving medication for her
affective disorder. There is also no question that this disorder has caused more than a
minimal limitation on her ability to do basic work activities, as evidenced by the fact that
she lives in an assisted living facility. The “Assisted Living Care program is designed to
assist those APS [Adult Protective Services] clients who lack adaptive behavior to the
degree that they cannot manage to live independently. The program provides non-medical
residential care and financial assistance to needy adults who require the protective
oversight of an assisted living home.”52 Plaintiff also points out that Dr. Bay did not
“anticipate that” plaintiff would “be ready to move out of” the Assisted Living Facility
in the foreseeable future. The patient was placed in the
Assisted Living Facility because she was unable to manage on
her own. Prior to placement she had severe depression in part
due to isolation. She had difficulty attending activities of daily
living, specifically was not able to obtain or prepare food, was
not showering and had virtually no social contact.[53]
52Admin. Rec. at 402.
53Admin. Rec. at 822.
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In addition to the foregoing requirement, in order to meet the “paragraph C”
requirements, plaintiff must also show one of the following:
1. Repeated episodes of decompensation, each of
extended duration; or
2. A residual disease process that has resulted in
such marginal adjustment that even a minimal
increase in mental demands or change in the
environment would be predicted to cause the
individual to decompensate; or
3. Current history of 1 or more years’ inability to
function outside a highly supportive living
arrangement, with an indication of continued
need for such an arrangement.
The ALJ found that plaintiff did not meet any of these criteria, but plaintiff argues that she
meets number 3 because she has lived in the Assisted Living Facility since 2010 and because
Dr. Bay opined that plaintiff would continue to need to live there in the foreseeable future.
The ALJ discussed the fact that plaintiff lived in an Assisted Living Facility during
his assessment of plaintiff’s RFC. At the administrative hearing, plaintiff’s counsel argued
that plaintiff’s placement in this facility meant that plaintiff was disabled but the ALJ
rejected that argument because the criteria for placement was not the same as the criteria
for disability under the Social Security Act.54 While the ALJ was correct that a disability
determination by another agency is not binding on the Social Security Administration, that
54Admin. Rec. at 25.
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does not mean that plaintiff’s living in an Assisted Living Facility was not relevant to the
question of whether plaintiff met the “paragraph C” criteria.
Under Social Security regulations “[t]o qualify” as a highly structured living
arrangement, “the environment must be ‘highly structured and supportive.’” Parker v.
Colvin, Case No. CV–14–2135–TUC–DTF, 2015 WL 3448182, at *3 (D. Ariz. May 29, 2015)
(quoting 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00F). “Examples of such a placement are
a ‘hospital, halfway house, [or] board and care facility.’” Id. (quoting 20 C.F.R. pt. 404,
subpt. P, app. 1, § 12.00F).
Miller reported that Circle House provided plaintiff with “[r]oom and board,
transportation and some other assistance as needed” and that plaintiff was “in control of
her own meds[.]”55 Miller’s testimony does not suggest that Circle House was a highly
structured environment and as Dr. Lewy noted, plaintiff was “free to kind of come and go
in that facility[,]”56 which led him to conclude that Circle House was not a highly
supportive living arrangement. And at least one court has found a similar arrangement to
not be a highly structured living arrangement. See Miller v. Comm’r Social Sec. Admin.,
Case No. 3:12 CV 3064, 2014 WL 916945, at *11 (N.D. Ohio March 10, 2014) (holding that
group home was not highly structured living arrangement because “[a]lthough Plaintiff’s
55Admin. Rec. 410.
56Admin. Rec. at 48.
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meals are prepared and his medication is distributed by an employee of the group home,
he is otherwise without supervision. Plaintiff testified that he may come and go as he
pleases (with the exception of an evening curfew)”). Thus, the ALJ did not err in finding
that plaintiff did not meet the “paragraph C” requirements.
Plaintiff next argues that the ALJ erred in his treatment of the medical opinions. In
assessing plaintiff’s RFC, the ALJ gave Dr. Lewy’s opinion great weight.57 Dr. Lewy opined
that plaintiff had “moderate limitations in activities of daily living, social functioning, and
maintaining concentration, persistence and pace.”58 Plaintiff argues that it was error for the
ALJ to give this opinion great weight while ignoring the opinions of her treating
psychiatrists. Plaintiff contends that the ALJ failed to mention or discuss the evaluations
and opinions of her five treating psychiatrists.
But, none of the five treating psychiatrists offered any opinions as to plaintiff’s
limitations. Thus, to the extent that plaintiff is contending that the ALJ rejected the treating
physicians’ opinions in favor of Dr. Lewy’s opinion, that contention is wrong. The ALJ
explained why he was giving great weight to Dr. Lewy’s opinion and why he was giving
less weight to the opinions of the non-examining psychiatrists. This is all he was required
to do. The ALJ was not required to discuss opinions that did not exist.
57Admin. Rec. at 24.
58Admin. Rec. at 46.
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As part of her medical opinion argument, plaintiff raises an issue with the fact that
when assessing plaintiff’s RFC, the ALJ found that the objective medical evidence did not
support plaintiff’s allegations that the limitations flowing from her mental impairments
were disabling.59 The ALJ noted that “[a] review of the medical evidence of record reveals
no neuropsychological test results or other appropriate testing” and thus the ALJ found
“no objective evidence that the claimant experiences alleged cognitive limitations.”60
Plaintiff argues that there was no such testing because the Anchorage Community Mental
Health Services does not provide neuropsychological testing and that she should not be
faulted for not getting testing that was not available. Plaintiff also denies that she alleged
cognitive impairment.
Plaintiff has alleged that she has difficulties with her memory and concentration,
which are cognitive impairments. While plaintiff may be correct that she cannot be faulted
for not receiving testing that was not available from her mental health provider, that does
not mean that the ALJ erred in assessing plaintiff’s RFC. Plaintiff contends that her
difficulties with memory and concentration are a result of her bipolar condition and the
medications she takes for it. But there is no objective medical evidence to support her
contention that her bipolar disorder caused difficulties with memory and concentration and
59Admin. Rec. at 22.
60Admin. Rec. at 22.
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her contention that she has side effects from her medications is belied by the record. Dr.
Bay noted that plaintiff reported no side effects from her medication61 and there are no
indication in any other treatment notes that plaintiff complained of difficulties with
concentration and memory as a side effect of her bipolar medication. Moreover, the ALJ’s
RFC took into account plaintiff’s alleged difficulties with concentration and memory by
limiting plaintiff to work that involved only 1- to 2-step repetitive tasks and simple work-
related decisions and “work that would allow written, more than verbal instructions[.]”62
Plaintiff next argues that the ALJ erred in giving limited weight to the testimony of
Susan Miller, who was the administrator of the Assisted Living Facility where plaintiff
lived. The ALJ gave limited weight to Miller’s testimony because she was not a medical
or mental health care professional, because the medical evidence did not support the
limitations Miller said plaintiff had, and because her testimony suggested that plaintiff was
capable of a wide range of activities.63 “If an ALJ disregards the testimony of a lay witness,
the ALJ must provide reasons ‘that are germane to each witness.’” Bruce v. Astrue, 557
F.3d 1113, 1115 (9th Cir. 2009) (quoting Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.
1996)).
61Admin. Rec. at 769, 772, & 774.
62Admin. Rec. at 18.
63Admin. Rec. at 26.
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The first reason was not a proper reason to reject Miller’s testimony. Miller was not
offering assessments that only a medical or mental health care professional could make.
Rather, Miller was offering testimony based on her observation of plaintiff. Moreover, if
the fact that Miller was not a mental health professional was a valid reason to give her
testimony little weight, an ALJ would never have to give a lay witness’ testimony much
weight.
But, the other two reasons given by the ALJ were proper reasons for discounting
Miller’s testimony. Miller described physical limitations that were unsupported by the
objective medical evidence and Miller reported that plaintiff could take care of her personal
needs, visited with friends, participated in activities at the home, did some household
chores, and used public transportation, all of which suggest that plaintiff was not as limited
as she claimed. Thus, the ALJ did not err in giving limited weight to Miller’s testimony.
Finally, plaintiff argues that the ALJ erred in not allowing Miller to testify at the final
hearing. At the April 2013 hearing, Miller was present and plaintiff’s counsel requested
that she be allowed to give testimony. The ALJ told plaintiff’s counsel that she would have
to submit Miller’s testimony in written form because there was not time to take Miller’s
testimony before his next hearing.64
64Admin. Rec. at 58.
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Plaintiff cites to no authority that required the ALJ to allow Miller to present live
testimony at the administrative hearing. Defendant suggests that plaintiff may be
attempting to argue that the ALJ failed to fully and fairly develop the record. “The ALJ in
a social security case has an independent ‘duty to fully and fairly develop the record and
to assure that the claimant’s interests are considered.’” Tonapetyan v. Halter, 242 F.3d
1144, 1150 (9th Cir. 2001) (quoting Smolen, 80 F.3d at 1288). “Ambiguous evidence, or the
ALJ’s own finding that the record is inadequate to allow for proper evaluation of the
evidence, triggers the ALJ's duty to ‘conduct an appropriate inquiry.’” Id. (quoting
Smolen, 80 F.3d at 1288). Here, the ALJ had a third-party function report from Miller and
her answers to some specific questions that plaintiff’s attorney had posed to her. There was
nothing ambiguous in her statements and the ALJ reasonably determined that he could
evaluate her testimony without additional oral testimony. The ALJ did not err in not
allowing Miller to present live testimony at the April 2013 hearing.
Conclusion
Based on the foregoing, the Commissioner’s decision is affirmed. The clerk of court
shall enter judgment dismissing plaintiff’s complaint with prejudice.
DATED at Anchorage, Alaska, this 6th day of July, 2015.
/s/ H. Russel Holland
United States District Judge
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