Rounds v. Commissioner Social Security Administration, No. 3:2012cv00342 - Document 24 (D. Or. 2013)

Court Description: OPINION AND ORDER. For the foregoing reasons, the decision of the ALJ is AFFIRMED. IT IS SO ORDERED. Signed on 04/24/2013 by Judge Malcolm F. Marsh. (pvh)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON 3:12-cv-00342-MA HEATHER ROUNDS, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. TIM D. WILBORN P.O. Box 370578 Las Vegas, Nevada 89137 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 KATHRYN ANN MILLER Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900, M/S 901 Seattle, Washington 98104 Attorneys for Defendant 1 - OPINION AND ORDER OPINION AND ORDER MARSH, Judge Plaintiff, Heather Rounds, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her application for supplemental security income (SSI) disability benefits under Title XVI of the Act. See 42 U.S.C. §§ pursuant to 42 U.S.C. § 1381-1383f. 405(g). This court has jurisdiction For the reasons set forth below, I affirm the final decision of the Commissioner. PROCEDURAL BACKGROUND Plaintiff protectively filed an application for SSI on March 10, 2009, social alleging disability due to depression, phobias, recurring learning disabilities, headaches. Tr. 160. Her initially and upon reconsideration. (ALJ) held a hearing on August 6, represented by counsel and cognitive schizophrenia, disorder, application was and denied An Administrative Law Judge 2010, testified. at which plaintiff was Tr. 35-82. David R. Rullman, M.D., was present throughout the hearing and testified as a medical expert.' Vocational Expert (VE) Paul Morrison was also present throughout the hearing and testified. On September 3, 2010, the ALJ issued a decision plaintiff not disabled within the meaning of the Act. 1 finding Tr. 21-30. Dr. Rullman's name appears as "Dr. Roman" in the hearing transcript. This appears to be a typographical error, as Dr. Rullman's resume indicates the correct spelling of his name. Tr. 113. 2 - OPINION AND ORDER After the Appeals Council declined review of the ALJ's decision, plaintiff timely filed a complaint in this court. FACTUAL BACKGROUND Born on July 10, 1986, plaintiff was 22 years old on the date of her application and 24 years old on the date of the hearing. addition to her hearing testimony, Function Tr. Report. 166-81. plaintiff submitted an Adult Davidson, .Gary disability claim process, plaintiff's opinion of plaintiff's disability. On January 28, 2009, a submitted Molly C. Tr. 182-89. of statement the his Tr. 206. Ph.D., McKenna, conducted a Comprehensive Neuropsychological Administrative Examination, submitted an evaluation. Psy.D., reviewed Tr. 261-79. plaintiff's In in representative brief Gavin roommate, Plaintiff's Lipscomb, submitted a Third Party Function Report. addition, In and In addition, Joshua J. Boyd, records Residual Functional Capacity Assessment. and submitted a Mental Tr. 303-06. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a sequential five-step process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. 416.920(a) (4). §§ 404.1520(a) (4), Each step is potentially dispositive. bears the burden of proof at Steps One through Four. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Bowen v. The claimant Tackett v. The burden shifts to the Commissioner at Step Five to show that a significant number of 3 - OPINION AND ORDER jobs exist in the national economy that the claimant can perform. See Yuckert, 482 U.S. at 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ found that plaintiff has not engaged in substantial gainful activity since the application date, March 10, See 20 C.F.R. 2009. At Step depressive disorder, Two, § 416.971 et seq.; Tr. 23. ALJ disorder; social phobia; not otherwise specified; plaintiff's that determined the major developmental pervasive and cognitive disorder, not otherwise specified were severe medically determinable impairments. See 20 C.F.R. § 416.921 et seq.; Tr. 23-24. At Step Three, the ALJ found that plaintiff does not have an impairment or combination of impairments that meet or medically See 20 C.F.R. equal any listed impairment. §§ 416.920(d), 416.925, 416.926; Tr. 24-25. The ALJ found that plaintiff has the residual functional capacity (RFC) to perform a full range of work at all exertional levels, but can perform only one- to two-step tasks with no public Tr. 25-28. contact, no teamwork, and limited coworker contact. At Step Four, the ALJ determined that plaintiff had no past relevant work. At Step See 20 C.F.R. Five, § 416.965; Tr. 28. the ALJ however, found that jobs exist in significant numbers in the national economy that plaintiff can perform, including Recycler/Reclaimer . 4 - OPINION AND ORDER Kitchen See 20 Helper, C.F.R. Hand § Packager, 416.969; Tr. and 29-30. Accordingly, the ALJ found that plaintiff was not disabled within the meaning of the Act. ISSUES ON REVIEW First, Plaintiff argues that the ALJ erred in five ways. plaintiff maintains that the ALJ improperly rejected her testimony. Second, plaintiff argues that the ALJ erred in improperly rejecting the opinions of Drs. McKenna and Boyd. Third, plaintiff asserts· that the ALJ erred in failing to include plaintiff's fibromyalgia as a medically determinable impairment at Step Two because the ALJ failed to his fulfill duty to develop Fourth, record. the plaintiff submits that the ALJ erred in rejecting the lay witness statements of Gavin Lipscomb and Gary Davidson. Finally, plaintiff argues that the Step Five finding was not supported by substantial evidence because the vocational hypothetical did not contain the limitations included in the allegedly improperly rejected evidence, and, even if the vocational hypothetical was sufficient, the jobs cited by the ALJ are not available under that hypothetical. STANDARD OF REVIEW The court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the 405(g); Andrews v. Shalala, 53 F. 3d 1035, record. 1039 42 U.S. C. (9th Cir. § 1995). ''Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable 5 - OPINION AND ORDER Id. mind might accept as adequate to support a conclusion." weigh court must all of the whether evidence, than one rational the interpretation, Andrews, decision must be upheld. or Heckler, If the evidence is susceptible 807 F.2d 771, 772 (9th Cir. 1986). more supports Martinez v. detracts from the Commissioner's decision. to it The Commissioner's If the 53 F. 3d at 1039-40. evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for Edlund v. Massanari, that of the Commissioner." 253 F.3d 1152, 1156 (9th Cir. 2001). DISCUSSION I. Rejection of Plaintiff's Testimony In deciding whether to accept subjective symptom testimony, an ALJ must perform two stages of analysis. 416.929. evidence First, of an the claimant underlying 20 C.F.R. produce must impairment that expected to produce the symptoms alleged. F. 3d 1273, 1281-82 (9th Cir. 1996). §§ 404.1529, objective medical could reasonably be Smolen v. Chater, 80 Second, absent a finding of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, convincing reasons for doing so. clear and Id. at 1281. If an ALJ finds that the claimant's testimony regarding his subjective symptoms is unreliable, the "ALJ must make a credibility determination citing 6 - OPINION AND ORDER the reasons why the testimony is unpersuasive." Morgan v. Apfel, 169 F. 3d 595, 599 (9th Cir. 1999). In doing so, the ALJ must identify what testimony is credible and what testimony and make complaints, claimant's the undermines "findings sufficiently specific to permit the court to conclude that the ALJ did arbitrarily not discredit claimant's [the) Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). testimony." The ALJ may rely upon ordinary techniques of credibility evaluation in weighing the claimant's credibility. Tommasetti v. Astrue, 533 F. 3d 1035, 1039 (9th Cir. 2008). limitations Plaintiff based on her that reported concentration, follow Report, Function her In mental her understanding, instructions, and get Tr. impairments. affected conditions and abilities along listed exclusively plaintiff 1vi th to 166-73. her memory, complete tasks, others. Tr. Plaintiff stated that her daily routine was to wake up, 171. feed her "fish, cats and kid," occasionally eat breakfast, use the computer for "quite a while," listen to music, spend time 1vith her daughter, pet and talk to her cats, talk to her roommate, look out the window at the trees, occasionally go to the park, put her daughter to bed, and then stay up using the computer until late in the night. 166. Plaintiff sleeping. Id. additionally engage in that she has trouble Plaintiff stated that she often forgets to eat, shower, or brush her teeth. can reported Tr. most 7 - OPINION AND ORDER Tr. 167. cleaning Plaintiff reported that she activities, including sweeping, vacuuming, washing the floors and dishes, and doing laundry, but that it takes her all day to clean, and somebody has to "constantly stated that daughter, her only social activities 168. Tr. complain about a mess" for her to notice. are to talk Plaintiff with her roommate, mother, and a "couple online people," and to play a board game with her daughter. Plaintiff reported Tr. 170. that to go out of the house she needs somebody that she trusts to accompany her. Id. Plaintiff also noted that she has "always been pretty bad with money," not knowing how much change she is supposed to receive or how much money to give to a cashier. Id At the hearing, plaintiff stated that her fibromyalgia causes pain in her back, shoulders, and neck that is typically moderate, but can occasionally become severe. Tr. 60-61. Plaintiff testified that she can still move around, but that she has severe pain that causes difficulty functioning three month. Id. to six days per Plaintiff stated that she has difficulty lifting and carrying heavy objects, and that her fibromyalgia symptoms worsen in cold weather. Tr. 65. In addition, plaintiff testified that her fibromyalgia caused fatigue that contributes to her lack of functionality. Tr. 65-66. Plaintiff additionally testified that she frequently has an upset stomach. Tr. 56-57. The ALJ rejected plaintiff's subjective testimony because her alleged limitations are inconsistent with the greater level of functionality reflected in her medical records, plaintiff has been 8 - OPINION AND ORDER uncooperative sources treating with use the concerning of medications and therapy, and because the record indicates plaintiff only accesses medical and psychological resources when she has a secondary gain motivation, but otherwise has shown little interest in treatment. Tr. 26-27. I conclude that these reasons together amount to clear and convincing reasons for rejecting plaintiff's testimony, and are supported by substantial record evidence. The ALJ reasonably found that the medical record showed a greater level of functionality and potential functionality than plaintiff alleged. Notably, plaintiff reported to Dr. McKenna that "[s]he believes she is capable of working, social contact, plaintiff told if Dr. Tr. possible." McKenna that but prefers to avoid "[s]he the As 262. spends volunteering at a Muscular Dystrophy charity, a ALJ noted, typical day attending Project Enterprise at the PCC North Metro DHS Office, and working on her resume." Id. In addition, Dr. McKenna noted that, "[d]espite her discomfort in social communications, positive relationships with others, relationships and close friends." Id. [plaintiff] reports multiple including several romantic As the ALJ noted, plaintiff reported to Dr. McKenna that she is "independent for all activities of daily living, including meal preparation, cleaning, laundry, and managing finances." Tr. 263. The ALJ's finding that plaintiff's testimony was inconsistent with statements contained in the medical record is supported by substantial evidence in the record, 9 - OPINION AND ORDER and constitutes a compelling reason to reject plaintiff's subjective symptom testimony. The ALJ also reasonably found that plaintiff was uncooperative with many of her treating medical and psychological providers. inadequately explained failure to An comply with medical seek or treatment is a proper basis upon which an ALJ may discredit a claimant's testimony. Fair v. Bowen, 885 F.3d 597, 603 (9th Cir. 198 9) . In a February of 2009 follow up to Dr. McKenna's evaluation, plaintiff indicated that "[s)he is not interested in continuing treatment as she does not get any benefit from it." 270. Tr. Later in 2009, plaintiff saw Jessica M. Harrison, LCSW, and Sheryl A. Hedges, PMHNP, on a few occasions. presented to Ms. to Hedges On April 3, 2009, plaintiff initiate and, treatment, after demonstrating several odd behaviors, reported that she would pick up prescribed medication from the pharmacy, but may not take it. Tr. 285-86. On April 7, plaintiff met with Ms. Harrison, and reported that she had a depressed mood, but was "hesitant to seek out assistance in treating her depression." Tr. 285. At a follow up appointment on April 16, Ms. Harrison noted odd mannerisms, and that plaintiff would benefit from therapy "given her reluctance to utilize medication therapy." Tr. 284. The next week, Ms. Hedges again noted plaintiff's reluctance to take medication, and stated that counseling was the best treatment option. 10 - OPINION AND ORDER Tr. 283. On August 3, Harrison Ms. however, that reported plaintiff "some had disinterest in therapy, but says 'I guess I'll give it a try for now,'" and that plaintiff "does not want to take medications," because she is skeptical about them. Tr. 282. It does not appear In addition, with plaintiff saw Ms. Harrison or Ms. Hedges again. the exception of a relatively brief period counseling of in relation to regaining custody of her daughter in 2004 and 2005, the record is treatment devoid of any for any mental conditions before plaintiff applied for disability. or physical Tr. 234-49. The ALJ reasonably discounted plaintiff's credibility because she was not cooperative with medical providers. Finally, the ALJ reasonably discredited plaintiff's testimony because plaintiff appeared to only seek medical treatment when she had a secondary gain motive to do so, such as regaining custody of her daughter, receiving a letter to allow her to keep her cat, or In 2004 obtaining documentation for her disability claim. and 2005, plaintiff underwent two evaluations for purposes of regaining Tr. 234-49. custody of her daughter. stated that she was seeking On March 23, 2009, plaintiff treatment because interested in receiving a letter to "keep [her] 286. she was mainly two cats." Tr. In August of 2009, plaintiff began her most consistent period of therapy because she was "seeking treatment to have documentation for a disability claim." continued this course ll - OPINION AND ORDER of Tr. 364. therapy While plaintiff consistently at LifeWorks NW, she again restated on December "came she that 2009, 17, Tr. 353. originally because she has applied for SSI." In addition, the March 23, counseling for 2009 appointment is the first instance of an appointment with a physical medical treating source, although most of the chart note discusses plaintiff's psychological difficulties and ultimately resulted in the referral to Ms. Hedges. The next treatment reference from a treating source Tr. 286-88. for plaintiff's alleged physical ailments does not appear until March 12, 2010, which is the earliest dated finding of fibromyalgia Tr. 317. in the record. All of these encounters took place after plaintiff applied for disability benefits on March 10, 2009. Some plaintiff's of motivations secondary seeking the fact that their Nonetheless, treatment are understandable. for associated treatment constitutes the overwhelming majority of the treating medical record in this case supports the ALJ's finding that plaintiff's primary resources psychological for motivation were reasons seeking other underlying medical and psychological conditions. than medical and treating her The ALJ' s finding in this respect is supported by substantial record evidence and constitutes a compelling reason for rejecting plaintiff's testimony. I conclude that the above reasons, taken together, constitute clear and convincing reasons for rejecting plaintiff's testimony. 12 - OPINION AND ORDER The ALJ did not err in discrediting plaintiff's subjective .symptom testimony. II. Rejection of Medical Testimony Plaintiff next argues that the ALJ erred in failing to fully incorporate the limitations described by Drs. McKenna and Boyd into the The RFC. reasons Commissioner to reject provide and clear convincing treating or uncontradicted opinion of a the examining physician. must Lester v. Chater, 81 F.3d 821, 830-31 (9th Where a physician's opinion is contradicted by that of Cir. 1995). another physician, the ALJ may reject the physician's opinion by providing specific and legitimate reasons supported by substantial evidence in the record. Id. "'The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is conclusory, brief, findings.'" and inadequately supported by clinical Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (quoting Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)). evidence, "'Where . . . the record contains conflicting medical the ALJ is charged with determining credibility and Barnhart, 331 resolving the conflict.'" F.3dl030, 1040 translating the (9thCir. claimant's limitations in the RFC. (quoting Benton v. 2003)). medical The ALJ is responsible for conditions into functional See Stubbs-Danielsen v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 13 - OPINION AND ORDER Id. Ultimately, the RFC is sufficient if it restrictions "consistent with is identified in the medical Id. testimony." The ALJ credited the opinions of both Drs. Boyd and McKenna, Plaintiff and stated that the RFC was supported by both opinions. that argues the ALJ omitted limitations identified by both psychologists. A. Dr. McKenna Dr. McKenna evaluation. "Clinical Tr. and submitted examined plaintiff 261-69. At the end of the Formulation/Progno sis," Dr. McKenna a thorough section entitled concluded the following: At this time the primary impediments to returning this evaluee to full-time gainful employment are her severe social anxiety, unusual beliefs and perceptions, limited verbal and working memory, and poor mental organization. She is independent for all activities of daily living, and continues to manage her own affairs with little Her deficits are primarily social and difficulty. With appropriate placement in training or cognitive. employment, she is a good candidate to return to work. However, it should be noted that her unusual beliefs, strong interests in only a few areas, and occasionally odd reasoning may make it hard for her to engage with some types of training programs. She also may struggle to overcome her social anxiety enough to build good working relationships with case managers, instructors, or therapists. Tr. 268. In the next section, entitled "Treatment Recommendations," Dr. McKenna outlined many recommended treatment options irrelevant to present functional limitations, but also made workplace recommendations: 14 - OPINION AND ORDER 11. 12. 13. 14. 15. 18. She should avoid positions that require a great deal of math. She should write down information to be remembered later. She should use "cheat sheetsn for regularly numbers, codes, as such information used definitions, etc. She should inform her instructors and supervisors that she requires information to be repeated to be recalled best. She should use memory compensatories such as post-it notes, reminder phone calls, address books, calendars, She may wish to record etc. to remember information. instructions/important information for later review. She should have information both explained verbally and provided in written form. * * * She should seek positions that limit customer or public contact. Tr. 269. In the RFC, the ALJ limited plaintiff to performing one- to t\vo-step tasks with no public contact, coworker contact. Tr. 25. no teamwork, and limited Plaintiff argues that these limitations in the RFC fail to adequately incorporate some of Dr. McKenna's recommendations, Because I conclude that the ALJ reasonably translated the functional limitations described by Dr. McKenna into the RFC, I disagree. In incorporating functional limitations from a medical opinion into the RFC, an ALJ may rely on specific imperatives rather than recommendations. See Carmickle v. Comm'r Soc. Sec. Admin, 533 F.3d 1155, 1165 (9th Cir. 2008). accommodate paragraph of the the limitations Clinical 15 - OPINION AND ORDER The limitations in the RFC adequately found in Dr. McKenna's Formulation/Prognosis concluding section. The to limitation plaintiff's memory mental and reasonably tasks two-step or one- accommodates limitations. organization The limitation to no public contact, no teamwork, and limited coworker contact adequately accommodates plaintiff's social limitations. The ALJ' s on reliance Formulation/Progno sis" reasonable. the in the "Clinical fashioning the RFC imperatives section in was See Carmickle, 533 F.3d at 1165. Nonetheless, I conclude that Dr. McKenna's recommendations are The recommendations also adequately accounted for in the RFC. regarding the use of cheat sheets, reminders, and post-it notes, for example, merely go to the afor'ementioned memory limitations which the ALJ reasonably accounted for by limiting plaintiff to one- to two-step tasks. Additionally, I note that many of the recommendations in Dr. McKenna's opinion, such as the use of postit notes or cheat sheets, are commonly available in the workplace. In sum, I find that the ALJ appropriately translated the medical conditions found by Dr. McKenna into functional limitations in the RFC, and testimony. the RFC is therefore consistent with See Stubbs-Danielsen, 539 F.3d at 1174. the medical The ALJ did not reject Dr. McKenna's opinion. B. Dr. Boyd Dr. Boyd reviewed plaintiff's records and completed a Mental Residual Functional Capacity Assessment (MRFC). the MRFC, Dr. Boyd found: 16 - OPINION AND ORDER In Section III of AB The [claimant] would not be significantly limited in understanding/memory or sustained concentration or pace for simple tasks. [Claimant's] severe social anxiety would likely interfere [with] her consistently carrying out more detailed tasks. The [claimant] should not work closely with or in coordination with coworkers. The [claimant] should avoid engaging the public. Interactions should be limited to very brief and infrequent contact due to [medically determinable impairments] . The [claimant] occasionally may need help to set realistic goals. C D Tr. 305. failed Plaintiff, for good reason, does not argue that the ALJ to plaintiff incorporate argues these that the limitations ALJ failed in to the RFC. include Rather, limitations described in boxes checked in Section I of the MRFC worksheet. The Ninth Circuit Court of Appeals, however, found this argument "strained" in Israel v. Astrue. 494 Fed.Appx. 794, 2012 WL 4845578, cited the at *3 Social (9th Cir. Oct. Security 12, 2012). Administration's The Ninth Circuit Program Operations Manual System (POMS) for its explanation that "Section I is 'merely a worksheet Instead, ' [ i] t and does not constitute the RFC assessment.' is the narrative written by the psychiatrist or psychologist in [S]ection III . the assessment of RFC. '" citations omitted) . 2 Thus, Id. that adjudicators are to use as at *2 n.1 (emphasis and internal the ALJ need not incorporate every 'Plaintiff's argument that I should ignore the POMS because it does not carry the force of law misses the mark. Like the Ninth Circuit in Israel, I find the POMS persuasive in this instance. 17 -OPINION AND ORDER The ALJ did not checked box in Section I into the ultimate RFC. reject Dr. Boyd's opinion because the RFC "adequately capture[d)" the limitations described therein. See Israel, 2012 WL 4845578, at *3 (quoting Stubbs-Danielson, 539 F. 3d at 1174). Because the RFC adequately captured the findings of Drs. Boyd and McKenna, the ALJ did not erroneously reject their opinions. III. Exclusion of Fibromyalqia at Step Two Plaintiff argues that the ALJ erred in excluding fibromyalgia as a severe medically determinable impairment at Step Two because the ALJ failed to fulfill his duty to develop the record. In social security cases, the ALJ "has an independent 'duty to fully and fairly develop the record and to assure that the claimant's interests are considered.'" Tonapetyan v. Halter, 1150 (9th Cir. 2001) extends to the 242 F.3d 1144, (quoting Smolen, 80 F. 3d at 1288). represented as well as to the "This duty unrepresented claimant," but the ALJ must be "especially diligent" where the claimant is unrepresented. Id. The duty to develop the record is triggered where the record contains ambiguous evidence or the ALJ finds the record is inadequate to allow for a proper evaluation of the evidence. Id. "The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record." Id. 18 - OPINION AND ORDER Plaintiff argues that the medical record was ambiguous as to the medical determinability of her fibromyalgia diagnosis, so as to trigger the ALJ's duty to develop the record. Ukolov v. Barnhart, (quoting 42 U.S.C. 2005) omitted). the "if clinical acceptable techniques."' to be an impairment must be "'demonstrable by medically determinable, medically Generally, §§ and laboratory diagnostic 420 F.3d 1002, 1005 (9th Cir. 423(d) (3), 1382c(a) (3) (D)) (emphasis As such, an impairment is only medically determinable record signs includes the results of 'medically acceptable clinical diagnostic techniques,' such as tests- as well as symptoms, i.e. , [her) impairment." [the Id. College of Rheumatology plaintiff' s] representations regarding With respect to fibromyalgia, the American (ACR) lists the diagnostic criteria as "patient reports of pain when at least 11 of 18 points cause pain when palpated by the examiner's thumb." Welfare Benefit Plan, Corp. Jordan v. Northrop Grumman 370 F. 3d 8 69, 872 (9th Cir. 2004), overruled on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir. 2006); Rollins v. Massanari, 261 F. 3d 853, 855 (9th Cir. 2001). In this case, an undated, 3 unsigned chart note constitutes the only record with any reference to the fibromyalgia. Tr. 310. 3 diagnostic findings for In the chart note, the unnamed provider Although the record lists the "Encounter Date" as March 23, 2009, that date similarly appears on chart notes dated, among others, April 24 and August 3, 2009. Tr. 310-12. 19 - OPINION AND ORDER and exam" on points [t] ender "multiple referenced listed fibromyalgia under the section entitled "Assessment/ Plan." 310. Tr. Robert Henriques, M.D., noted fibromyalgia in treatment notes dated April 13 and May 13, 2010, but did not make any diagnositc Tr. 324-35. findings. record The the before ALJ qualify to insufficient was fibromyalgia as a medically determinable impairment because there was no unambiguous "medically acceptable clinical diagnostic technique, " i.e. , the Rather, the record ACR's criteria of 11 out of 18 tender points. Plaintiff 310. Tr. merely mentions "multiple" tender points, relevant the indication that plaintiff met argues that this evidence was sufficiently ambiguous to trigger the ALJ's duty to further develop the record, and that the ALJ failed to do so. I agree with plaintiff that this is the sort of ambiguous triggers duty the ALJ' s to further develop the evidence that record. I conclude, however, that the ALJ fulfilled this duty by leaving the record open for two weeks after the hearing. Plaintiff was represented by counsel at the hearing. Plaintiff's counsel questioned plaintiff about her fibromyalgia 58-61. diagnosis. Tr. plaintiff's counsel, the In the midst of a ALJ, and the discussion between medical expert at the hearing, plaintiff's counsel acknowledged the diagnostic ambiguity in the record concerning fibromyalgia , 20 - OPINION AND ORDER saying "I'm the one, I think, brought up the idea the fibromyalgia shows up in the middle [of the record], and if you go back and try to find it's origin, and it's very difficult to do." Tr. 72. record open for two weeks after the hearing. [sic] The ALJ left the Tr. 81. Although the record was left open for the stated purpose of obtaining additional therapy records from LifeWorks NW, there is no indication it was exclusively limited to that purpose. I hold that the ALJ discharged his duty to further develop the record as to the ambiguity regarding the fibromyalgia diagnosis because plaintiff was represented by counsel at the hearing, plaintiff's counsel acknowledged the record's ambiguity as to the fibromyalgia' diagnosis, and the ALJ kept the record open for an additional two weeks after the hearing. See Tonapetyan, 242 F.3d at 1150 (recognizing that an ALJ discharges the duty to develop the record by keeping the record open after the hearing). Simply put, plaintiff's counsel knew of an ambiguity in the record, and had an opportunity to clarify that ambiguity, but failed to do so. This is not a circumstance where the ALJ failed to fully develop the record, but rather an instance in which plaintiff failed to carry her burden. Because the record did not contain documentation of the requisite findings to diagnose fibromyalgia, err by excluding it at Step Two. Ill Ill 21 - OPINION AND ORDER the ALJ did not IV. Rejection of Lay Witness Testimony Plaintiff next argues that the ALJ cited legally insufficient reasons for partially rejecting the statements lay witness of plaintiff's roommate, Gavin Lipscomb, and her social security claim representative, Lay Davidson. Gary testimony regarding a claimant's symptoms or how an impairment affects her ability to work is competent evidence that an ALJ must take into account. Molina v. Astrue, 674 F. 3d 1104, 1114 (9th Cir. 2012). To discount lay witness testimony, the ALJ must give reasons that are germane to the witness. Id. Mr. Lipscomb A. Mr. Lipscomb submitted a Third Party Function Report listing limitations that largely mirrored those described by plaintiff. Tr. In the "Remarks" section on the last page of the 182-89. Function Report, Mr. Lipscomb. noted that plaintiff reason to want to work." statements as Tr. 189. descriptive of " [ s] ees no The ALJ accepted Mr. Lipscomb's his perception of plaintiff's limitations, but ultimately concluded that it did not change the RFC because Mr. Lipscomb's statement that plaintiff "sees no reason to want to work," was indicative of secondary gain motives rather than an actual inability to work. Tr. 189. I conclude that this is a sufficient reason to discredit Mr. Lipscomb's testimony. The ALJ reasonably interpreted Mr. Lipscomb's statement as suggesting 22 - OPINION AND ORDER plaintiff's lack of employment was elective rather than caused by disability. B. Mr . D;widson Mr. Davidson was plaintiff's appointed representative for the purpose of filling out disability documents and gathering evidence. Tr. 85. Mr. Davidson made a statement of his personal opinion in a portion of a Disability Report he filled out and submitted on plaintiff's behalf. Mr. Davidson opined, in full: Tr. 206. I have been working with Ms. Rounds for several months. It is difficult to work with her because of her memory she need to be going to mental health we are problems. She is currently is not able to be working on this. employed. we are working on getting her what she needs. It will clearly take more then a year to possible get her where she might work in something other then a sheltered work shop [.) Tr. In his decision, 206 (errors in original). the ALJ did not address Mr. Davidson's opinion. As an initial matter, I question whether the opinion of a claimant's disability representative is competent "lay testimony" that the ALJ must address in the disability determination. Mr. Davidson's opiniDn is competent lay testimony, ALJ' s error in failing to address it is Even if however, harmless. The the vast majority of Mr. Davidson's statement flatly opines that plaintiff is disabled. Such a determination is a legal conclusion reserved to the Commissioner. See Tonaoetyan, 242 F.3d at 1148. other symptom or functional limitation Mr. 23 - OPINION AND ORDER The only Davidson notes is his reference to difficulty working with plaintiff caused by "memory Tr. problems." 206. Because this vague reference is no more limiting than any other reference to memory limitations in the record, the ALJ adequately accounted for it by limiting plaintiff to one- to two-step tasks in the RFC. Thus, any error in the failure to comment on Mr. Davidson's opinion was harmless because it was "inconsequential to the ultimate disability determination." See Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) . V. Step Five Finding Finally, plaintiff argues that the Commissioner failed to carry her burden at Step Five because the vocational hypothetical did not capture all of plaintiff's limitations and because the jobs identified by the ALJ are not supported by the RFC. When an ALJ finds that the claimant's impairments preclude him from performing past relevant work, the burden shifts to the Commissioner at Step Five to show that the claimant can perform other work that exists in significant numbers in the national economy. Soc. Sec. Admin., 616 F. 3d 1068, 1071 Lockwood v. Comm'r (9th Cir. 2010). The Commissioner can meet this burden by having a vocational expert testify at the hearing based on a vocational hypothetical. (quoting Tackett, 180 F.3d at 1101). Id. A vocational hypothetical is sufficient if it includes all of the claimant's limitations that are supported by substantial evidence in the record. 24 - OPINION AND ORDER See Bayliss An ALJ may 427 F.3d 1211, 1217-18 (9th Cir. 2005). v. Barnhart, exclude limitations unsupported by substantial evidence in the Id. record. In this case, the vocational hypothetical contained all of the limitations the ALJ found were supported by substantial evidence. For conclude I Thus, the that the evidence. substantial by supported above, discussed reasons the is RFC vocational hypothetical was adequate. Plaintiff finally argues that the jobs identified by the ALJ are not supported by the RFC because they each require a General Educational Dictionary (GED) Development Occupational of that the claimant be able to as (DOT). Titles without citation to authority, Two, Level defined in the asserts, Plaintiff that GED Level Two's requirement ~[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions," is necessarily inconsistent with the RFC' s restriction of plaintiff to or two-step tasks." ~one- There is no binding authority on this issue, the within courts limitation to Ninth Circuit are split as and district to whether a ~one- to two-step tasks" in the RFC is consistent ~ [a]pply common sense understanding to carry out with bring able to detailed but uninvolved written or oral instructions" at GED Level Two. See 1003631, at Gonzalez *4 v. (E. D. 25 - OPINION AND ORDER Colvin, No. 1:10-cv-01330-SKO, Mar. 13, 2013) Cal. (noting the 2013 WL lack of binding authority and citing cases reaching different conclusions on this question). The issue in this instance, however, is whether the ALJ was entitled to rely on the VE's expert testimony that the plaintiff, pursuant to the RFC adequately described by the ALJ, If the ALJ' s could perform jobs that required GED Level Two. on reliance the was testimony VE's supported by substantial evidence, then, I must find that the ALJ carried his burden at Step u.s.c. See 42 Five. § 405(g); Andrews, 53 F.3d at 1039. The substantial evidence standard does not require absolute certainty, but rather it must be "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews, 53 F.3d at 1039. Here, a reasonable mind could accept the VE's testimony as adequate to support the conclusion that plaintiff can perform other work that exists in significant numbers in the national economy. I find that the VE' s testimony that the RFC, including the limitation to one- to two-step tasks, was consistent with jobs that required a GED Level Two was at least arguably correct. In this case, there was no allegation that plaintiff had any intellectual limitations or lacked the ability to understand instructions. Rather, the one- to two-step task limitation dealt primarily with plaintiff's memory limitations. Thus, the VE's implicit conclusion that plaintiff could "[a]pply commonsense understanding to carry 26 - OPINION AND ORDER out detailed but uninvolved" instructions not is necessarily inconsistent with plaintiff's limitation to one- to two-step tasks. then, The ALJ, could reasonably the rely on testimony that plaintiff could perform the jobs he VE' s expert described. Therefore, the ALJ was entitled to rely on the VE's testimony in determining that plaintiff can perform other work that exists in significant numbers in the national economy. See Lockwood, 616 F.3d at 1071. CONCLUSION For the foregoing reasons, the decision of the ALJ AFFIRMED. IT IS SO ORDERED. DATED this ~day of April, 2013. ~ Malcolm F. Marsh United States District Judge 27 - OPINION AND ORDER is

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