Shepherd v. Commissioner of Social Security Administration
Court Docket Sheet

District of Arizona

2:2016-cv-02699 (azd)

First MOTION for Extension of Time to File Responsive Brief, Unopposed by Commissioner of Social Security Administration.

Case 2:16-cv-02699-GMS Document 16 Filed 01/30/17 Page 1 of 2 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Heather L. Griffith 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA46010 8 Fax: (206) 615-2531 heather.griffith@ssa.gov 9 Telephone: (206) 615-3709 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Alice Ann Shepherd, No. 16-02699-PHX-GMS 14 15 Plaintiff, 16 DEFENDANT’S MOTION FOR vs. EXTENSION OF TIME 17 Nancy A. Berryhill, 18 (First Request) Acting Commissioner of Social Security, 19 Defendant. 1 20 21 Upon the records and files herein and the following declaration, Defendant moves 22 for an order allowing additional time, through March 1, 2017, in which to file a 23 24 25 1 Nancy A. Berryhill is now the Acting Commissioner of Social 26 Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. 27 Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason 28 of the last sentence section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Case 2:16-cv-02699-GMS Document 16 Filed 01/30/17 Page 2 of 2 1 responsive Motion in the above-entitled action, pursuant to Fed. R. Civ. P. 6(b)(1). 2 Plaintiff’s counsel has been contacted and has no objection to this request. 3 DATED this 30th day of January 2017. 4 5 Respectfully submitted, 6 ELIZABETH A. STRANGE 7 Acting United States Attorney 8 District of Arizona 9 s/Heather L. Griffith 10 HEATHER L. GRIFFITH Special Assistant United States Attorney 11 12 Of Counsel for the Defendant: 13 MATHEW W. PILE 14 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 15 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 16 17 18 CERTIFICATE OF SERVICE 19 20 I hereby certify that the foregoing Defendant’s Motion for Extension of Time 21 was filed with the Clerk of the Court on January 30, 2017, using the CM/ECF 22 system, which will send notification of such filing to the following: Howard D. 23 Olinsky. 24 25 26 s/Paul Maestry-Williams PAUL MAESTRY-WILLIAMS 27 Paralegal Specialist 28 Office of the General Counsel 2

Text of Proposed Order

Case 2:16-cv-02699-GMS Document 16-1 Filed 01/30/17 Page 1 of 1 1 2 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 3 4 Alice Ann Shepherd, No. 16-02699-PHX-GMS 5 Plaintiff, 6 ORDER GRANTING MOTION FOR vs. 7 EXTENSION OF TIME 8 Nancy A. Berryhill, Acting Commissioner of Social Security, 9 10 Defendant. 11 After considering the Defendant’s Motion for Extension of Time to file 12 13 Defendant’s response to Plaintiff’s opening brief, and that Plaintiff’s counsel has been 14 contacted and has indicated no objection regarding this motion, it is hereby: 15 16 ORDERED that an extension, to and including March 1, 2017, is granted. 17 IT IS SO ORDERED this ____ day of, 2017. 18 19 20 21 22 23 24 25 26 27 28

DECLARATION of Heather Griffith re: [16] First MOTION for Extension of Time to File Responsive Brief, Unopposed by Defendant Commissioner of Social Security Administration.

Case 2:16-cv-02699-GMS Document 17 Filed 01/30/17 Page 1 of 3 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Heather L. Griffith 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA46010 8 Fax: (206) 615-2531 heather.griffith@ssa.gov 9 Telephone: (206) 615-3709 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Alice Ann Shepherd, No. 16-02699-PHX-GMS 14 15 Plaintiff, 16 vs. DECLARATION OF HEATHER L. GRIFFITH 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 I, Heather L. Griffith, declare as follows: 22 1. I am an Assistant Regional Counsel for the Social Security Administration 23 and a Special Assistant United States Attorney for Social Security matters. 24 25 2. Plaintiff filed her opening brief on December 30, 2016. 26 3. Defendant’s brief is currently due to be filed on or before January 30, 2017. 27 4. I need additional time to prepare the Commissioner’s defense in this case. 28 Case 2:16-cv-02699-GMS Document 17 Filed 01/30/17 Page 2 of 3 1 My daughter and I have both been ill and I have needed to take unexpected leave. I also 2 have several other district court briefs with deadlines within the next two weeks days. 3 5. For these reasons, I am requesting a 30-day extension until March 1, 2017, 4 5 in which to complete the Commissioner’s brief. 6 6. On January 30, 2017, I emailed Plaintiff’s attorney, Howard Olinsky, 7 regarding an extension. By reply email the same day, an attorney at Mr. Olinsky 8 indicated that he had no objections to the requested extension. 9 10 7. The parties have agreed to extend the Commissioner’s due date for the 11 Responsive Brief to March 1, 2017. An extension will help resolve this matter 12 expeditiously. 13 14 Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing 15 is true and correct. 16 Executed this 30th day of January 2017. 17 18 s/Heather L. Griffith HEATHER L. GRIFFITH 19 Special Assistant U.S. Attorney 20 21 22 23 24 25 26 27 28 2 Case 2:16-cv-02699-GMS Document 17 Filed 01/30/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Declaration of Heather L. Griffith was 3 filed with the Clerk of the Court on January 30, 2017, using the CM/ECF system, 4 5 which will send notification of such filing to the following: Howard D. Olinsky. 6 7 s/Paul Maestry-Williams 8 PAUL MAESTRY-WILLIAMS Paralegal Specialist 9 Office of the General Counsel 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

ORDER granting [16] Motion for Extension of Time: Defendant shall have to and including March 1, 2017, to file a responsive brief. Signed by Judge G Murray Snow on 1/31/2017.

Case 2:16-cv-02699-GMS Document 18 Filed 01/31/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Alice Ann Shepherd, No. CV-16-02699-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security 13 Administration, 14 Defendant. 15 16 After considering Defendant’s (unopposed) Motion for Extension of Time (Doc. 17 16) and good cause appearing, 18 IT IS ORDERED granting the Motion. Defendant shall have to and including 19 March 1, 2017, to file a responsive brief. 20 Dated this 31st day of January, 2017. 21 22 Honorable G. Murray Snow 23 United States District Judge 24 25 26 27 28

RESPONSE BRIEF by Commissioner of Social Security Administration.

Case 2:16-cv-02699-GMS Document 19 Filed 03/01/17 Page 1 of 12 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Heather L. Griffith 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA46010 8 Fax: (206) 615-2531 heather.griffith@ssa.gov 9 Telephone: (206) 615-3709 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Alice Ann Shepherd, No. CV-16-02699-PHX-GMX 14 15 Plaintiff, 16 DEFENDANT’S BRIEF vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 20 Defendant. 21 Alice Ann Shepherd (Plaintiff) filed this action for judicial review of the final 22 agency decision of Defendant, Acting Commissioner of Social Security (Commissioner), 23 24 finding him not disabled within the meaning of the Social Security Act. As set forth 25 below, substantial evidence supports the Commissioner’s decision and Plaintiff did not 26 meet her burden to show prejudicial error. Therefore, the Court should affirm the 27 28 decision. Case 2:16-cv-02699-GMS Document 19 Filed 03/01/17 Page 2 of 12 1 ISSUES 2 1. Does substantial evidence support the Administrative Law Judge’s (ALJ’s) 3 conclusion that Plaintiff was not a reliable source for determining the most she 4 5 could do despite her impairments? 6 2. Did the ALJ reasonably consider the medical opinion of Frantz Muse, M.D.? 7 3. Did the ALJ provide germane reasons for discounting the lay witness statement? 8 STANDARD OF REVIEW AND PLAINTIFF’S BURDEN 9 10 The Commissioner’s findings may be set aside only if they are based on legal error 11 or are not supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Hiler v. 12 Astrue, 687 F.3d 1208, 1211 (9th Cir. 2012). Substantial evidence means "such relevant 13 14 evidence as a reasonable mind might accept as adequate to support a conclusion." 15 Richardson v. Perales, 402 U.S. 389, 401 (1971). The Court may not reverse an ALJ’s 16 decision due to an error that is harmless. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 17 18 2012). To show harm, Plaintiff bears the burden to demonstrate, without operation of 19 mandatory presumptions or application of rigid rules, that an error affected her 20 substantial rights, not merely her procedural rights. Id. 21 STATEMENT OF FACTS 22 23 Plaintiff was born in 1962 and was 50 years old when she applied for 24 Supplemental Security Income (SSI) benefits (Tr. 25, 186). Plaintiff completed the eighth 25 grade (Tr. 211). She has past work as a package handler, caretaker, and laborer (Tr. 211, 26 27 217). Plaintiff alleges disability beginning March 1, 2009 (Tr. 14, 186). Plaintiff alleges 28 disability due to a broken right leg, asthma, back pain, insomnia, migraines, memory loss, 2 Case 2:16-cv-02699-GMS Document 19 Filed 03/01/17 Page 3 of 12 1 and eyesight problems (Tr. 210, 242). The ALJ has summarized the medical and 2 testimonial evidence (Tr. 17-25). The Commissioner will discuss the relevant facts in 3 connection with her responses to Plaintiff’s contentions below. 4 5 THE ALJ’S FINDINGS 6 The ALJ applied the five-step sequential evaluation process for determining 7 whether a claimant is disabled (Tr. 15-16). 20 C.F.R. § 416.920. The ALJ made the 8 following relevant findings, among others. 9 10 Step Two: Plaintiff had the severe impairments of history of right tibial fracture, 11 status post-surgery, and an affective disorder (Tr. 17; Finding 2). 12 Step Three: Plaintiff’s impairments did not meet or medically equal the 13 14 requirements of a listed impairment (Tr. 17; Finding 3). 15 Residual functional capacity (RFC): Plaintiff retained the ability to perform light 16 work with unlimited lifting and carrying within light lifting limits; no climbing ladders, 17 18 ropes or scaffolds; occasional climbing ramps and stairs; unlimited balancing; occasional 19 stooping, kneeling, crouching, and crawling. Plaintiff had the ability to understand, 20 remember, and carry out simple and unskilled, repetitive tasks; to respond appropriately 21 to supervision, co-workers, and usual work situations; and to deal with changes in a 22 23 routine work setting (Tr. 19). 24 Step Five: Plaintiff could perform jobs that exited in significant numbers in the 25 national economy (Tr. 26; Finding 8). 26 27 Disability: Plaintiff was not disabled from October 16, 2012, the application date, 28 through the date of the ALJ’s decision, December 5, 2014 (Tr. 26; Finding 9). 3 Case 2:16-cv-02699-GMS Document 19 Filed 03/01/17 Page 4 of 12 1 ARGUMENT 2 I. Substantial evidence supports the ALJ’s conclusion that Plaintiff was not 3 a reliable source for determining the most she could do despite her impairments. 4 Contrary to Plaintiff’s assertions (ECF No. 15 at 13-16), the ALJ’s finding that 5 6 Plaintiff’s statements concerning the intensity, persistence and limiting effect of her 7 symptoms were not entirely credible was proper and supported by the evidence. The 8 Ninth Circuit has explained that if the ALJ find that the claimant’s pain testimony is not 9 10 credible, the ALJ must make findings that support that conclusion. Rollins v. Massanari, 11 261 F.3d 853, 856-57 (9th Cir. 2001). In addition, "the findings must be sufficiently 12 specific to allow a reviewing court to conclude the ALJ rejected the claimant’s testimony 13 14 on permissible grounds and did not arbitrarily discredit the claimant’s testimony." Id. 15 (quotations omitted).1 The ALJ provided legally sufficient reasons to support this finding 16 (Tr. 21-25). 17 First, the ALJ discounted Plaintiff’s symptom complaints because her medications 18 19 for her pain and mental health were effective (Tr. 22, 24). "The type, dosage, 20 effectiveness, and side effects of any medication you take or have taken to alleviate your 21 pain or other symptoms" are relevant to the evaluation of a claimant’s alleged 22 23 24 1 25 The "clear and convincing" standard is not controlling because the Social Security Act only requires "reason or reasons" supported by substantial evidence. 42 26 U.S.C. § 405(b). Generally, it is "[not] appropriate to substitute for the formula that 27 Congress has adopted any judicially crafted revision of it." Pierce v. Underwood, 487 U.S. 552, 565 (1987). The Commissioner notes this objection to Ninth Circuit case law to 28 preserve the issue on appeal. The ALJ’s decision, however, satisfies either standard. 4 Case 2:16-cv-02699-GMS Document 19 Filed 03/01/17 Page 5 of 12 1 symptoms." 20 C.F.R. § 416.929(c)(3)(iv). See Molina v. Astrue, 674 F.3d 1104, 1113 2 (9th Cir. 2012) (upholding credibility finding where doctors concluded that claimant’s 3 anxiety disorder was not severe and could be controlled with medication and other self-4 5 calming measures). Here, Plaintiff reported her pain level with medication was a 4 or a 5, 6 while her pain level without medication was an 9 to a 10 (Tr. 370, 372, 378-79). The ALJ 7 reasonably found the record documented her pain management medications were 8 working (Tr. 22). Further, Plaintiff reported that her mental health medication was 9 10 working (Tr. 24, 420, 449, 458). The ALJ reasonably discounted her credibility for this 11 reason. 12 Second, the ALJ discounted Plaintiff’s symptom reports because of her 13 14 noncompliance with medication and illicit drug use (Tr. 24). "The ALJ may consider 15 many factors in weighing a claimant’s credibility," including "unexplained or 16 inadequately explained failure to seek treatment or to follow a prescribed course of 17 18 treatment." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Plaintiff did not 19 take her pain medication as prescribed, and reported "doubling up" on Vicodin (Tr. 24, 20 322). She also reported using heroin or morphine daily and routine use of marijuana 21 (Tr. 24, 406). The ALJ reasonably found this drug use was not consistent with work 22 23 activity (Tr. 24). 24 Third, the ALJ discounted Plaintiff’s symptom complaints because her poor work 25 history suggested a low motivation for work activity (Tr. 23). An ALJ may consider a 26 27 claimant’s poor work history when evaluating credibility. Thomas v. Barnhart, 278 F.3d 28 948, 959 (9th Cir. 2002) (upholding ALJ’s finding that claimant’s alleged symptoms 5 Case 2:16-cv-02699-GMS Document 19 Filed 03/01/17 Page 6 of 12 1 related to a slip-and-fall injury were not entirely credible because she had an "extremely 2 poor work history" and "has shown little propensity to work in her lifetime"); 20 C.F.R. 3 § 416.929(c)(3) (stating an ALJ must consider evidence about a claimant’s prior work 4 5 record). Plaintiff reported to that the longest she had worked for a single-employer was 6 one year, and that her jobs had ended due to layoffs or resignation (Tr. 23, 303-04). 7 Fourth, the ALJ discounted Plaintiff’s complaints because she reported to her 8 treating physician Dr. Muse that her chief complaint was that she was waiting for her 9 10 SSI, and that being denied SSI previously was very irritable to her (Tr. 24, 429). At the 11 same time, she indicated that her mood improved with medications (Tr. 24, 429). An ALJ 12 may discount a claimant’s credibility when she makes inconsistent statements. Social 13 14 Security Ruling (SSR) 96-7p, available at 1996 WL 374186, at *5. ("One strong 15 indication of the credibility of an individual’s statements is their consistency, both 16 internally and with other information in the case record."). The inconsistency between 17 18 Plaintiff’s report to her provider and her claim of disability was a valid reason to discount 19 her complaints of symptoms. 20 In sum, the ALJ gave multiple legally sufficient reasons for discounting Plaintiff’s 21 credibility (Tr. 21-25). A court need not uphold all of an ALJ’s reasons for discrediting a 22 23 claimant, so long as substantial evidence supports the ALJ’s decision. Batson v. Comm’r 24 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004); see also Carmickle v. Comm’r 25 Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (upholding an ALJ’s credibility 26 27 determination, although two of the ALJ’s reasons were invalid). Further, a court should 28 defer to an ALJ’s rational interpretation of conflicting evidence. Burch v. Barnhart, 400 6 Case 2:16-cv-02699-GMS Document 19 Filed 03/01/17 Page 7 of 12 1 F.3d 676, 680-81 (9th Cir. 2005). The Court should uphold the ALJ’s determination. 2 II. The ALJ reasonably considered the medical opinion of Dr. Muse and 3 included appropriate limitations in the RFC. 4 Plaintiff contends the ALJ did properly evaluate the opinion of treating physician 5 Dr. Muse. ECF No. 15 at 11-13. An ALJ considers all relevant medical evidence and is 6 responsible for resolving its ambiguities and conflicts. 20 C.F.R. § 416.927; Batson, 359 7 8 F.3d at 1195. According to the agency’s regulations, the ALJ must "explain in the 9 decision the weight given to the opinions" of all acceptable medical sources. 20 C.F.R. 10 § 404.1527(e)(2)(ii). For treating source opinions, the ALJ must give "good reasons" for 11 12 the weight given. SSR 96-2p, available at 1996 WL 374188, at *5. 13 The Ninth Circuit has sometimes stated that an ALJ "must state clear and 14 convincing reasons that are supported by substantial evidence" to reject the 15 uncontradicted opinion of a treating or examining physician.2 Bayliss v. Barnhart, 427 16 17 F.3d 1211, 1216 (9th Cir. 2005). A contradicted opinion, however, merits a lower 18 threshold, and the ALJ may reject such an opinion by offering "specific and legitimate 19 reasons that are supported by substantial evidence." Id. The "specific and legitimate" 20 21 standard is met where an ALJ "summarized the facts and conflicting clinical evidence in 22 detailed and thorough fashion, stating his interpretation and making findings." 23 24 2 25 Agency rules do not require "clear and convincing" reasons, however, and courts must apply the extremely deferential "substantial evidence" standard of review prescribed 26 by Congress, 42 U.S.C. § 405(g), which requires affirmance of an agency’s factual 27 findings unless the evidence "compels a contrary result," Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir. 2003). The Commissioner notes this objection to Ninth Circuit 28 case law to preserve the issue on appeal. 7 Case 2:16-cv-02699-GMS Document 19 Filed 03/01/17 Page 8 of 12 1 Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 2 The conflicting opinion of a non-examining doctor is sufficient to trigger the 3 specific and legitimate standard. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) 4 5 ("where the treating doctor’s opinion is not contradicted by another doctor, it may be 6 rejected only for'clear and convincing’ reasons") (emphasis added). Contrary to 7 Plaintiff’s assertion (ECF No. 15 at 1, 13), clear and convincing reasons are not required 8 in this case. Plaintiff cites no caselaw to support her interpretation. Here, the opinion of 9 10 Dr. Muse (Tr. 463-65) were contradicted by the opinions of consultative examiner Brent 11 Geary, Ph.D. (Tr. 302-06), and State agency reviewing doctors Paul Cherry, Ph.D., and 12 Joan Holloway, Ph.D. (Tr. 91-93, 108-110). Under either legal standard, however, the 13 14 ALJ’s reasoning was legally sufficient and supported by substantial evidence. 15 Dr. Muse opined that Plaintiff had marked and moderate limitations in several 16 areas (Tr. 463-64). These include marked limitations in Plaintiff’s ability to understand 17 18 and remember short and simple instruction, sustain and ordinary routine, and be aware of 19 normal hazards and take appropriate precautions (Tr. 463-64). The ALJ provided several 20 reasons for discounting Dr. Muse’s opinion (Tr. 25). 21 The ALJ discounted Dr. Muse’s opinion because it was inconsistent with his own 22 23 treatment notes (Tr. 25). This was a valid reason to discount the opinion. See Valentine v. 24 Comm’r Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (upholding ALJ’s 25 rejection of treating psychologist’s contradicted opinion because it conflicted with his 26 27 own treatment notes showing claimant’s improved functioning at work). Here, treatment 28 notes indicated that Plaintiff’s report that her medications were working and helping her 8 Case 2:16-cv-02699-GMS Document 19 Filed 03/01/17 Page 9 of 12 1 mood (Tr. 420, 429, 439, 449, 458). By April 2014, she reported that her medication were 2 working such that she did not have any complaints other than her financial and housing 3 situations (Tr. 24, 439). In July 2014, Plaintiff said to Dr. Muse, "[a]s long as I take my 4 5 medications I am ok" (Tr. 25, 458). 6 The ALJ also discounted Dr. Muse’s opinion because treatment notes showed 7 Plaintiff had no more than moderate symptoms and limitations with her medication (Tr. 8 25). "Impairments that can be controlled effectively with medication are not 9 10 disabling...." Warre ex rel. E.T. IV v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 11 1006 (9th Cir. 2006). This finding was supported by substantial evidence. Mental status 12 examinations showed that Plaintiff had fair memory, good judgment, good insight, and 13 14 fair concentration (Tr. 24, 421, 430, 450). She had logical thought processes and 15 associations, and an unremarkable stream of thought (Tr. 24, 430, 450). The treatment 16 notes did not indicate the level of limitations reported in Dr. Muse’s opinion. The ALJ 17 18 reasonably discounted Dr. Muse’s opinion for this reason. 19 Finally, the ALJ discounted Dr. Muse’s opinion because it was inconsistent with 20 the opinion of consultative examiner Dr. Geary (Tr. 25). This was a valid reason to 21 discount Dr. Muse’s opinion. See Batson, 359 F.3d at 1195 (upholding ALJ’s rejection of 22 23 treating physicians’ opinions "because of their conflict with the results of a consultative 24 medical evaluation"). Dr. Geary opined that Plaintiff had adequate comprehension and 25 recall for simple material, had no limitations in sustained concentration and persistence, 26 27 had no social limitations, and would be able to adjust to workplace changes, though she 28 would be slow to do so (Tr. 306). The ALJ reasonably discounted Dr. Muse’s opinion. 9 Case 2:16-cv-02699-GMS Document 19 Filed 03/01/17 Page 10 of 12 1 III. The ALJ provided germane reasons for discounting the lay witness statement. 2 Contrary to Plaintiff’s arguments (ECF No. 15 at 17-18), the ALJ properly 3 4 considered the lay statement of Plaintiff’s son Eric Archer (Tr. 25, 247-54). The ALJ 5 need only note "arguably germane reasons" for dismissing lay testimony, and is not 6 required to "clearly link his determination to those reasons." Lewis v. Apfel, 236 F.3d 7 8 503, 512 (9th Cir. 2001). The ALJ met that standard here. 9 The ALJ discounted the lay statement because the limitations reported were not 10 consistent with the objective record, as discussed above (Tr. 25). An ALJ may discounted 11 12 a lay opinion because it is inconsistent with the medical evidence. Bayliss, 427 F.3d at 13 1218. 14 The ALJ also discounted the lay statement because Mr. Archer simply endorsed 15 his mother’s subjective complaints, and, as discussed above, she was not a credible 16 17 witness. This is a germane reason to discount the statement. Valentine, 574 F.3d at 694 18 ("Mrs. Valentine’s testimony of her husband’s fatigue was similar to Valentine’s own 19 subjective complaints. Unsurprisingly, the ALJ rejected this evidence based, at least in 20 21 part, on'the same reasons [she] discounted [Valentine’s] allegations.’ In light of our 22 conclusion that the ALJ provided clear and convincing reasons for rejecting Valentine’s 23 own subjective complaints, and because Ms. Valentine’s testimony was similar to such 24 25 complaints, it follows that the ALJ also gave germane reasons for rejecting her 26 testimony." (brackets in original)). 27 Plaintiff also contends that the ALJ erred by not addressing a statement in the 28 10 Case 2:16-cv-02699-GMS Document 19 Filed 03/01/17 Page 11 of 12 1 record by a Social Security Field Office employee (Tr. 207). ECF No. 15 at 17. Plaintiff 2 has pointed to no authority that the ALJ was required to address this statement. See, e.g., 3 SSR 06-3p, available at 2006 WL 2329939 at *2 (lay witnesses include counselors, 4 5 educational personnel, spouse, parents, caregivers, relatives, friends, neighbors, clergy, 6 and employers). Further, the employee’s statement that Plaintiff was dressed 7 inappropriately, was unkempt, laughed, and appeared to be unstable mentally was not an 8 assessment of her abilities and limitations that the ALJ needed to discuss when 9 10 formulating the RFC. Plaintiff has not identified an error. 11 CONCLUSION 12 Because the ALJ’s findings are supported by substantial evidence and free of 13 14 harmful error, the Commissioner requests this Court affirm the Commissioner’s final 15 decision that Plaintiff was not disabled. 16 Plaintiff asks for an award of benefits, but does not explain how this case satisfies 17 18 all of the elements of the Ninth Circuit’s credit-as-true rule. ECF No. 14 at 18-19. Given 19 the conflicting medical evidence in this case and the adverse credibility finding, the Court 20 should not award benefits, even if it finds the ALJ harmfully erred. See Dominguez v. 21 Colvin, 808 F.3d 403, 409 (9th Cir. 2015) (crediting a medical opinion as true when there 22 23 are conflicting medical opinions and an adverse credibility finding "reverses the required 24 order of analysis"). 25 26 27 28 11 Case 2:16-cv-02699-GMS Document 19 Filed 03/01/17 Page 12 of 12 1 DATED this 1st day of March 2017. 2 Respectfully submitted, 3 ELIZABETH A. STRANGE 4 Acting United States Attorney 5 District of Arizona 6 s/Heather L. Griffith HEATHER L. GRIFFITH 7 Special Assistant United States Attorney 8 Of Counsel for the Defendant: 9 10 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 11 Office of the General Counsel, Region X 12 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 13 14 15 16 17 18 CERTIFICATE OF SERVICE 19 I hereby certify that the foregoing Defendant’s Brief was filed with the 20 21 Clerk of the Court on March 1, 2017, using the CM/ECF system, which will send 22 notification of such filing to the following: Howard D. Olinsky. 23 24 s/Heather L. Griffith 25 HEATHER L. GRIFFITH 26 Attorney Office of the General Counsel 27 28 12

ORDER - The ALJ's decision is AFFIRMED. The Clerk of Court is directed to enter judgment accordingly. Signed by Judge G Murray Snow on 6/23/17.

Case 2:16-cv-02699-GMS Document 20 Filed 06/23/17 Page 1 of 13 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Alice Ann Shepherd, No. CV-16-02699-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is the appeal of Plaintiff Alice Ann Shepherd, which 16 challenges the Social Security Administration’s decision to deny benefits. (Doc. 15.) For 17 the reasons set forth below, this Court affirms. 18 BACKGROUND 19 On October 16, 2012, Ms. Alice Shepherd filed an application for supplemental 20 security income, alleging a disability onset date of March 1, 2009.1 (Tr. 14.) Her claim 21 was initially denied on January 31, 2013, and it was denied again upon reconsideration on 22 1 23 This is not the first time Ms. Shepherd applied for and was denied supplemental security income. (Tr. 120.) Generally, administrative res judicata binds an ALJ to the 24 findings of the earlier ALJ’s opinion, unless a "changed circumstance indicating a greater 25 disability" is present. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). The ALJ found, and neither party contests, that changed circumstances justified denying the earlier 26 ALJ’s opinion preclusive effect in this case. (Tr. 14–15.) Specifically, the ALJ 27 explained that Ms. Shepherd’s change in age category justified rebutting the presumption of res judicata. (Tr. 15.) Therefore, the ALJ applied the typical five-step sequential 28 evaluation of disability. Case 2:16-cv-02699-GMS Document 20 Filed 06/23/17 Page 2 of 13 1 August 7, 2013. (Id.) Ms. Shepherd then filed a written request for a hearing and she 2 testified before Administrative Law Judge ("ALJ") Sheldon Zisook on October 15, 2014. 3 (Tr. 14, 27.) On December 5, 2014, the ALJ issued a decision finding Ms. Shepherd not 4 disabled. (Tr. 27.) 5 In evaluating whether Ms. Shepherd was disabled, the ALJ undertook the five-step 6 sequential evaluation for determining disability.2 (Tr. 15–16.) At step one, the ALJ 7 found that Ms. Shepherd had not engaged in substantial gainful activity since October 16, 8 2012, her application date.3 (Tr. 25.) At step two, the ALJ determined that Ms. Shepherd 9 suffered from the following severe impairments: history of right tibial fracture, status 10 post ORIF surgery, and an affective disorder. (Tr. 17.) At step two, the ALJ also 11 determined that Ms. Shepherd’s asthma, COPD, back and neck impairments are non-12 severe. (Id.) At step three, the ALJ determined that none of Ms. Shepherd’s severe 13 14 2 The five-step sequential evaluation of disability is set out in 20 C.F.R. 15 § 404.1520 (governing disability insurance benefits) and 20 C.F.R. § 416.920 (governing supplemental security income). Under the test: 16 A claimant must be found disabled if she proves: (1) that she 17 is not presently engaged in a substantial gainful activity[,] (2) that her disability is severe, and (3) that her impairment meets 18 or equals one of the specific impairments described in the regulations. If the impairment does not meet or equal one of 19 the specific impairments described in the regulations, the claimant can still establish a prima facie case of disability by 20 proving at step four that in addition to the first two requirements, she is not able to perform any work that she has 21 done in the past. Once the claimant establishes a prima facie case, the burden of proof shifts to the agency at step five to 22 demonstrate that the claimant can perform a significant number of other jobs in the national economy. This step-five 23 determination is made on the basis of four factors: the claimant’s residual functional capacity, age, work experience 24 and education. 25 Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal quotation marks and citations omitted). 26 3 For Supplemental Security Income ("SSI") claims, the relevant period for 27 benefits runs from the date the claimaint files her application for benefits to the date of the ALJ’s decision. See Grey v. Barnhart, 123 F. App’x 778, 779–80 (9th Cir. 2005) 28 (outlining the relevant period for SSI claims). Neither party contests that this is the relevant date for the five-step analysis.-2-Case 2:16-cv-02699-GMS Document 20 Filed 06/23/17 Page 3 of 13 1 impairments equaled or met the severity of any of the Social Security Administration’s 2 listed impairments. (Id.) 3 At that point, the ALJ reached step four and made a determination of Ms. 4 Shepherd’s residual functional capacity ("RFC"),4 concluding that while Ms. Shepherd 5 could not perform her past relevant work as a warehouse worker, she could "perform 6 light work as defined in 20 CFR 404.967(b), with unlimited lifting and carrying within 7 light lifting limits, no climbing ladders, ropes, and scaffolds, and occasional climbing 8 ramps and stairs, unlimited balancing, and occasional stooping, kneeling, crouching, and 9 crawling." (Tr. 19, 25.) 10 The Appeals Council declined to review the decision. (Tr. 1–3.) Ms. Shepherd 11 filed the complaint underlying this action on August 10, 2016 seeking this Court’s review 12 of the ALJ’s denial of benefits. (Doc. 1.) 13 DISCUSSION 14 I. Standard of Review 15 A reviewing federal court need only address the issues raised by the claimant in 16 the appeal from the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 17 2001).5 A federal court may set aside a denial of disability benefits only if that denial is 18 either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 19 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is "more than a scintilla but less 20 than a preponderance." Id. (quotation omitted). "Substantial evidence is relevant 21 22 23 4 RFC is the most a claimant can do despite the limitations caused by his impairments. See S.S.R. 96–8p (July 2, 1996). 24 5 In her opening brief, the Claimant states that the ALJ’s opinion "did not include 25 all of her severe ailments." Doc. 15 at 10. The Claimant failed to set forth which additional impairments should have been considered severe. This conclusory statement is 26 insufficient to preserve this issue on appeal. Hilao v. Estate of Marcos, 103 F.3d 767, 778 (9th Cir. 1996) ("The summary mention of an issue in a footnote, without reasoning 27 in support of the appellant’s argument, is insufficient to raise the issue on appeal."). Further, the ALJ analyzed the Claimant’s other impairments and found that they were not 28 individually severe while indicating that he would consider them in determining the Claimant’s condition as a whole. (Tr. 17−19.)-3-Case 2:16-cv-02699-GMS Document 20 Filed 06/23/17 Page 4 of 13 1 evidence which, considering the record as a whole, a reasonable person might accept as 2 adequate to support a conclusion." Id. (quotation omitted). 3 The ALJ is responsible for resolving conflicts in testimony, determining 4 credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 5 1995). "When the evidence before the ALJ is subject to more than one rational 6 interpretation, we must defer to the ALJ's conclusion." Batson v. Comm’r of Soc. Sec. 7 Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because "[t]he [ALJ] and not the 8 reviewing court must resolve conflicts in evidence, and if the evidence can support either 9 outcome, the court may not substitute its judgment for that of the ALJ." Matney v. 10 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted). However, the Court 11 "must consider the entire record as a whole and may not affirm simply by isolating a 12'specific quantum of supporting evidence.’ " Id. (citing Hammock v. Bowen, 879 F.2d 13 498, 501 (9th Cir. 1989)). Nor may the Court "affirm the ALJ’s... decision based on 14 evidence that the ALJ did not discuss." Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 15 2003). 16 II. Analysis 17 A. The ALJ Properly Rejected Dr. Muse’s Medical Opinions 18 "As a general rule, more weight should be given to the opinion of a treating source 19 than to the opinion of doctors who do not treat the claimant." Lester v. Chater, 81 F.3d 20 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). Although this is the general rule, an 21 ALJ may properly reject the opinion of a treating physician in favor of a non-examining 22 physician in certain circumstances. If the opinion of a treating physician is not 23 contradicted by another physician, then the ALJ must provide clear and convincing 24 reasons for rejecting the opinion. Id. However, if a treating physician’s medical opinion 25 is contradicted by another physician, then the ALJ can reject his opinion for "specific and 26 legitimate reasons that are supported by substantial evidence in the record." Id. at 831. 27 In this case, the opinion of the treating physician was contradicted by another physician, 28 and thus the second standard applies.-4-Case 2:16-cv-02699-GMS Document 20 Filed 06/23/17 Page 5 of 13 1 Dr. Muse opined that Ms. Shepherd had marked limitations in her ability to 2 remember locations and work-like procedures, understand and remember instructions, 3 perform activities on a schedule, maintain normal attendance, sustain ordinary routines, 4 ask questions, and be aware of safety hazards. (Tr. 463–65.) He also found that she was 5 moderately limited in several other aspects of daily functioning, and that she suffered 6 from post-tramatic stress disorder, bipolar disorder, and an anxiety disorder. (Id.) The 7 ALJ in this case rejected Dr. Muse’s medical opinion because he determined that it was 8 1) inconsistent with the objective medical record, 2) inconsistent with Dr. Muse’s own 9 treatment notes, and 3) inconsistent with the findings of Dr. Geary. 10 An ALJ may discount the opinion of a treating physician if it is inconsistent with 11 the objective medical record as whole. See Batson v. Comm’r of Soc. Sec. Admin., 359 12 F.3d 1190, 1195 (9th Cir. 2004) ("[A]n ALJ may discredit treating physicians’ opinions 13 that are conclusory, brief, and unsupported by the record as a whole, or by objective 14 medical findings.") (internal citations omitted). The ALJ specifically noted that Ms. 15 Shepherd’s medical records explained that Ms. Shepherd "show[ed] improved mental 16 functioning and overall moderate symptomology in the presence of pharmacological 17 management, and no more than moderate symptoms and limitations in mental 18 functioning." (Tr. 25.) He also summarized the entirety of Ms. Shephard’s medical 19 history in the first half of his opinion, noting that with medication, Ms. Shepherd 20 appeared to be stable. (Tr. 25.) By Ms. Shepherd’s own admission, as long as she takes 21 her medication, she is "fine." (Tr. 25, 458.) She "was also assessed with a GAF of 55, 22 consistent with no more than moderate symptoms and limitations in social and 23 occupational functioning" even when she was not medicated.6 (Tr. 24, 410.) Therefore, 24 there was substantial evidence for the ALJ’s finding that the objective medical evidence 25 6 The ALJ’s summary of Ms. Shepherd’s medical record and subsequent citations 26 to inconsistencies between Dr. Muse’s opinion and the medical record does not constitute impermissible "second-guess[ing]" of a competent medical professional. (Doc. 15 at 13.) 27 The ALJ did not substitute his own judgment for Dr. Muse’s or make his own medical findings. Rather, the ALJ properly considered the record as a whole, and determined that 28 Dr. Muse’s medical findings were contrary to the findings of other competent medical professionals as well as the objective medical evidence and his own treatment notes.-5-Case 2:16-cv-02699-GMS Document 20 Filed 06/23/17 Page 6 of 13 1 did not support Dr. Muse’s findings of disability. 2 An ALJ may also consider inconsistencies between the treating physician’s 3 opinion and his treatment notes while weighing his opinion. See Valentine v. Comm’r 4 Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (affirming an ALJ’s decision to 5 discredit the findings of a treating psychologist due to inconsistencies between his 6 opinion and his treatment notes). Dr. Muse treated Ms. Shepherd at a facility called 7 "Valle del Sol" from 2013–2014. (Tr. 25.) During that time period, his treatment notes 8 indicate that while her speech was rapid and her thoughts were disorganized during her 9 initial visit, she appeared to improve over time while on medication. (Tr. 25, 413, 420, 10 429, 439, 449, 458.) Per Dr. Muse’s treatment notes, Ms. Shepherd’s main complaint 11 during this time period was continued trouble "staying asleep," but otherwise she 12 "continu[ed] to respond to her medication positively without any side effects." (Tr. 24, 13 449.) Although Dr. Muse opined that Ms. Shepherd has bipolar disorder in his 14 questionnaire, it is unclear that Dr. Muse ever actually diagnosed Ms. Shepherd with 15 bipolar disorder in his treatment notes. (Tr. 463.) As the ALJ noted, Dr. Muse’s 16 treatment notes summarized Ms. Shepherd’s continuous improvement through 17 medication and counseling, and were therefore inconsistent with the level of disability 18 Dr. Muse outlined in his questionnaire. (Tr. 25.) 19 The ALJ properly contrasted Dr. Geary’s findings with Dr. Muse’s findings. See 20 Batson, 359 F.3d at 1195 ("When presented with conflicting medical opinions, the ALJ 21 must determine credibility and resolve the conflict."). "The opinion of a nonexamining 22 physician cannot by itself constitute substantial evidence that justifies the rejection of the 23 opinion of either an examining physician or a treating physician." Id. However, it may 24 be sufficient when "consistent with other independent evidence in the record." 25 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Dr. Geary examined Ms. 26 Shepherd in January of 2013, and ultimately determined that she suffered from 27 depression, nicotine dependence, and remote history of physical abuse. (Tr. 23, 305.) 28 Dr. Geary found that while Ms. Shepherd’s "basic comprehension and recall for simple-6-Case 2:16-cv-02699-GMS Document 20 Filed 06/23/17 Page 7 of 13 1 material was adequate," her "low intellectual capacity" required her to receive frequent 2 reminders "about complicated job details." (Tr. 23, 303, 306.) The ALJ properly 3 determined that this opinion was supported by the medical record, specifically Ms. 4 Shepherd’s continued improvement and stability while being treated at Valle del Sol. 5 (Tr. 23, 25.) Therefore, he did not err in giving it more weight than Dr. Muse’s opinion. 6 The ALJ properly weighed the credibility of the physicians in this case, and thus his 7 findings are affirmed. 8 B. The ALJ Gave Sufficient Reasons For Rejecting Ms. Shepherd’s Testimony 9 10 Once a claimant establishes that objective medical evidence illustrates an 11 impairment that could reasonably cause the symptoms alleged, "and there is no evidence 12 of malingering,'the ALJ can reject the claimant’s testimony about the severity of her 13 symptoms only by offering specific, clear and convincing reasons for doing so.’ " 14 Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014) (quoting Smolen v. Chater, 80 15 F.3d 1273, 1282 (9th Cir. 2006)). This is the most stringent standard required in social 16 security cases. Id. In determining whether the claimant’s testimony regarding her 17 symptoms is credible, the ALJ can consider a multitude of factors, including: 18 (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements 19 concerning the symptoms, and other testimony by the claimant 20 that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed 21 course of treatment; and (3) the claimant’s daily activities. 22 Smolen, 80 F.3d at 1284. The ALJ can also consider "the claimant’s prior work record 23... and observations by treating and examining physicians and third parties about the 24 claimant’s symptoms and their effects." Id. at 1285. 25 1. Ms. Shepherd’s Inconsistencies with the Medical Record 26 The ALJ properly considered the inconsistencies between Ms. Shepherd’s 27 testimony and her medical record while assessing her credibility. "Although lack of 28 medical evidence cannot form the sole basis for discounting pain testimony, it is a factor-7-Case 2:16-cv-02699-GMS Document 20 Filed 06/23/17 Page 8 of 13 1 that the ALJ can consider in his credibility analysis." Burch v. Barnhart, 400 F.3d 676, 2 681 (9th Cir. 2005); see Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) ("While 3 subjective pain testimony cannot be rejected on the sole ground that it is not fully 4 corroborated by objective medical evidence, the medical evidence is still a relevant factor 5 in determining the severity of the claimant’s pain and its disabling effects."). 6 Furthermore, "evidence of conservative treatment is sufficient to discount a claimant's 7 testimony regarding severity of an impairment." Parra v. Astrue, 481 F.3d 742, 751 (9th 8 Cir. 2007) (internal quotation marks omitted); see also Warre v. Comm’r of Soc. Sec. 9 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) ("Impairments that can be controlled 10 effectively with medication are not disabling for the purpose of determining eligibility for 11 SSI benefits."). However, "it is error for an ALJ to pick out a few isolated instances of 12 improvement over a period of months or years and to treat them as a basis for concluding 13 a claimant is capable of working." Garrison, 759 F.3d at 1017. 14 The ALJ noted that although Ms. Shepherd testified that she experienced "constant 15 and debilitating pain," her medical record indicated that as of July 3, 2014, Ms. Shepherd 16 "demonstrated good rehabilitation potential" and "appeared to be in no acute distress, 17 with appropriate mood and affect." (Tr. 22, 399–400.) He also noted that in from March 18 to July of 2014, Ms. Shepherd appeared to give conflicting reports regarding the level of 19 pain she was in. (Tr. 22.) For example, in March of 2014, she claimed that her 20 medication was not "taking the edge off," but simultaneously claimed that when she took 21 her medication, the pain fell to a "5/10." (Tr. 22, 380.) By July of 2014, Ms. Shepherd 22 reported that her "medications were working well for her." (Tr. 22, 372.) The ALJ did 23 not err in considering these inconsistencies while assessing Ms. Shepherd’s credibility 24 regarding her level of pain. 25 The ALJ also cited to inconsistencies within the record to weigh the credibility of 26 Ms. Shepherd’s assertions regarding her mental health. For example, Ms. Shepherd 27 testified that she has trouble remembering things, often blacks out in a rage, and her 28 medication only helps her "some." (Tr. 21, 45–46.) Yet Ms. Shepherd consistently-8-Case 2:16-cv-02699-GMS Document 20 Filed 06/23/17 Page 9 of 13 1 reported improving mental health from November of 2014 onward. (Tr. 24, 413, 420, 2 429, 439.) Of note, she repeatedly affirmed that her medication was working, and that 3 she was fine "as long as I take my medications." (Tr. 25, 458.) Ms. Shepherd informed 4 her doctor that by February of 2014, her chief complaint was "that she was waiting for 5 SSI benefits, and that being denied SSI previously was very irritable to her." (Tr. 24, 6 429, 439.) The ALJ did not err in weighing these inconsistencies against Ms. Shepherd’s 7 credibility. 8 2. Considering Ms. Shepherd’s Illicit Drug Use and Noncompliance With Treatment 9 10 The ALJ also noted that Ms. Shepherd appeared to be using illicit drugs during the 11 period of disability. At one point, Ms. Shepherd informed her medical provider that she 12 used heroin or morphine daily, drank heavily, and routinely used marijuana. (Tr. 406.) 13 The ALJ cited to Ms. Shepherd’s continued illicit drug use as a factor for discrediting her 14 testimony. (Tr. 24.) He also noted that Ms. Shepherd told her doctors that she "doubled 15 up" on her Vicodin prescription on occasion. (Tr. 24, 322.) At that point, Ms. 16 Shepherd’s therapist felt it necessary to discuss substance abuse as well as the importance 17 of taking medications only as prescribed with Ms. Shepherd. (Tr. 24, 322.) 18 An ALJ may consider "unexplained or inadequately explained failure to seek 19 treatment or to follow a prescribed course of treatment" while weighing testimony. 20 Smolen, 80 F.3d at 1284. Therefore, the ALJ did not err in considering Ms. Shepherd’s 21 decision to abuse her pain medication while weighing her credibility. Furthermore, given 22 that any of the illegal drugs Ms. Shepherd reported ingesting on a regular basis could 23 alter her perceptions and mood, it was not error for the ALJ to consider that their 24 continued use could have a negative impact upon her reliability as a witness. See 25 generally Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (permitting the ALJ to 26 consider the claimant’s lack of candor regarding his alcohol use when analyzing 27 credibility). 28///-9-Case 2:16-cv-02699-GMS Document 20 Filed 06/23/17 Page 10 of 13 1 3. Ms. Shepherd’s Work History 2 The ALJ properly considered Ms. Shepherd’s work history during his credibility 3 analysis. See Marsh v. Colvin, 792 F.3d 1170, 1174 n. 2 (9th Cir. 2015) ("We reject 4 Marsh’s contention that the ALJ’s reference to her work history was improper."); Thomas 5 v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (permitting an ALJ to weigh a claimant’s 6 "spotty" work history against her credibility). Ms. Shepherd reported that "the longest 7 she had ever worked for a single-employer was one year with McDonald’s." (Tr. 23, 8 303–04.) It was not error for the ALJ to weigh her poor employment record as evidence 9 of "low motivation for work activity, which does not bolster her credibility overall." (Tr. 10 23.) 11 4. Ms. Shepherd’s Daily Activities 12 Ms. Shepherd asserts that the ALJ erred in considering her daily activities as 13 weighing against her credibility. "ALJs must be especially cautious in concluding that 14 daily activities are inconsistent with testimony about pain, because impairments that 15 would unquestionably preclude work and all the pressures of a workplace environment 16 will often be consistent with doing more than merely resting in bed all day." Garrison, 17 759 F.3d at 1016. "The Social Security Act does not require that claimants be utterly 18 incapacitated to be eligible for benefits, and many home activities may not be easily 19 transferable to a work environment where it might be impossible to rest periodically or 20 take medication." Smolen, 80 F.3d at 1284 n.7. Ms. Shepherd reported that "she spends 21 much of an average day lying down in front of the TV." (Tr. 19, 42.) She is also able to 22 microwave her meals. (Tr. 19, 43.) However, "she is unable to clean the house" and she 23 relies on her son for assistance throughout her daily life. (Tr. 19, 43.) Nothing about this 24 testimony is inconsistent with the level of discomfort Ms. Shepherd alleges. 25 Furthermore, none of these activities are easily transferable to a work place setting. 26 Therefore, to the extent that the ALJ did consider Ms. Shepherd’s daily activities as 27 inconsistent with her testimony, he erred. 28 Once it has been determined that an ALJ made an error during the review of a-10-Case 2:16-cv-02699-GMS Document 20 Filed 06/23/17 Page 11 of 13 1 claimant’s file, the next step is to determine whether the error was prejudicial. See 2 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (explaining 3 that an error is not prejudicial if "the ALJ’s decision remains legally valid, despite such 4 error.") Ninth Circuit precedents "do not quantify the degree of certainty needed to 5 conclude that an ALJ’s error was harmless." Marsh v. Colvin, 792 F.3d 1170, 1173 (9th 6 Cir. 2015). Generally, if "there remains'substantial evidence supporting the ALJ’s 7 conclusions on... credibility’ and the error'does not negate the validity of the ALJ’s 8 ultimate [credibility] conclusion,’ such [error] is deemed harmless and does not warrant 9 reversal." Carmickle, 533 F.3d at 1162 (quoting Batson, 359 F.3d 1190, 1197 (9th Cir. 10 2004). 11 The ALJ’s error here was not prejudicial, and thus there is no need to remand the 12 case. The three preceding sections outline other "specific, clear and convincing reasons" 13 for discrediting Ms. Shepherd’s testimony. Garrison v. Colvin, 759 F.3d at 1014–15. 14 Therefore, despite the ALJ’s error in discrediting Ms. Shepherd’s testimony based on her 15 daily activities, substantial evidence still supported the ALJ’s ultimate decision on her 16 credibility. The ALJ’s determination regarding Ms. Shepherd’s credibility is affirmed. 17 C. Lay Witness Testimony 18 "Lay testimony as to a claimant’s symptoms is competent evidence that an ALJ 19 must take into account, unless he or she expressly determines to disregard such testimony 20 and gives reasons germane to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 21 511 (9th Cir. 2001). Ms. Shepherd contends that the ALJ erred because he dismissed the 22 lay testimony of her son, Eric Archer, for inadequate reasons, and failed to address a 23 statement made by a Social Security Field Office employee. 24 The ALJ did not err in rejecting Mr. Archer’s testimony. "One reason for which 25 an ALJ may discount lay testimony is that it conflicts with medical evidence." Lewis, 26 236 F.3d at 511. The ALJ noted that Mr. Archer "endorsed the Claimant’s subjective 27 complaints including chronic pain, stress and anxiety," and again noted that the objective 28 medical evidence did not support the extent of Ms. Shepherd’s alleged limitations. (Tr.-11-Case 2:16-cv-02699-GMS Document 20 Filed 06/23/17 Page 12 of 13 1 25, 247–254.) This was a legitimate reason to discounting Mr. Archer’s testimony, and 2 thus the ALJ did not err. 3 A Social Security Field officer, Mr. B. Stump, noted that Ms. Shepherd "appeared 4 to be unstable mentally" and required assistance from a friend while filling out her 5 application for benefits in October of 2012. (Tr. 206.) The ALJ did not address this 6 statement in his analysis. While an ALJ "may use evidence from'other sources,’ as 7 defined in 20 CFR 404.1513(d) and 416.913(d), to show the severity of the individual’s 8 impairment(s) and how it affects the individual's ability to function," it is not apparent 9 that an ALJ is required to do so. S.S.R 06-03P, 2006 WL 2329939, at *2 (Aug. 9, 2006). 10 Ms. Shepherd does not cite to any authority supporting the proposition that the ALJ had 11 to address the field officer’s observations. To the contrary, an ALJ "need not discuss all 12 evidence presented." Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393 1394–95 (9th Cir. 13 1984) (citation omitted). He need only explain why "specific probative evidence has 14 been rejected." Id. Mr. Stump encountered Ms. Shepherd on one occasion, for a brief 15 period of time as she filed out an application for social security with a friend. (Tr. 206– 16 208.) He is neither a medical professional nor a close personal relation that would have 17 "special knowledge of the individual and may provide insight into the severity of the 18 impairment(s) and how it affects the individual's ability to function." S.S.R. 06-03P, 19 2006 WL 2329939, at *2 (Aug. 9, 2006). Therefore, it is unsurprising that the ALJ did 20 not determine that Mr. Stump’s observations were particularly probative, and thus it is 21 not apparent that failing to consider them constituted an error.7 22 7 23 Even assuming the ALJ did err in failing to consider Mr. Stump’s observations, such an error would not be prejudicial. See Molina v. Astrue, 674 F.3d 1104, 1122 (9th 24 Cir. 2012) ("Turning to the case at hand, we must consider whether the ALJ’s failure to 25 discuss the testimony from Molina's family members was'inconsequential to the ultimate nondisability determination’ in the context of the record as a whole."). As in Molina, Mr. 26 Stump’s observations "did not describe any limitations beyond those [the Claimant] herself described, which the ALJ discussed at length and rejected based on well-27 supported, clear and convincing reasons." Id. Therefore, "the ALJ’s failure to give 28 specific witness-by-witness reasons for rejecting the lay testimony did not alter the ultimate nondisability determination," and thus any such error was not prejudicial. Id.-12-Case 2:16-cv-02699-GMS Document 20 Filed 06/23/17 Page 13 of 13 1 CONCLUSION 2 For the foregoing reasons, the ALJ’s findings are supported by substantial 3 evidence and free of prejudicial error. 4 IT IS THEREFORE ORDERED that the ALJ’s decision is AFFIRMED. 5 IT IS FURTHER ORDERED that the Clerk of Court is directed to enter 6 judgment accordingly. 7 Dated this 23rd day of June, 2017. 8 9 Honorable G. Murray Snow 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-13-

CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed June 23, 2017, the Decision of the Commissioner of Social Security is AFFIRMED and this action is hereby terminated.

Case 2:16-cv-02699-GMS Document 21 Filed 06/23/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Alice Ann Shepherd, NO. CV-16-02699-PHX-GMS 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Court’s Order filed June 18 23, 2017, the Decision of the Commissioner of Social Security is AFFIRMED and this 19 action is hereby terminated. 20 Brian D. Karth District Court Executive/Clerk of Court 21 22 June 23, 2017 s/D. Draper 23 By Deputy Clerk 24 25 26 27 28

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Description
1
08/10/2016
* COMPLAINT filed by Alice Ann Shepherd.
1
Civil Cover Sheet
2
Letter) (LAD) * Modified to add text on 8/10/2016 (LAD). (Submitted by Howard Olinsky
2 Attachments
2
08/10/2016
APPLICATION to Proceed in District Court Without Prepaying Fees or Costs by Alice Ann Shepherd. (Submitted by Howard Olinsky)
3
08/10/2016
SUMMONS Submitted by Alice Ann Shepherd. (Submitted by Howard Olinsky)
1
Summons
2
https://ecf.azd.uscourts.gov/doc1/025116245124" onClick="goDLS{{'/doc1/025116245124','994202','9','','2','1','',''}};">2</a> Summons)
2 Attachments
4
08/10/2016
This case has been assigned to the Honorable G Murray Snow. All future pleadings or documents should bear the correct case number: CV-16-02699-PHX-GMS. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.
5
08/11/2016
MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky by Alice Ann Shepherd.
1
Letter to Clerk
1 Attachment
6
08/11/2016
ORDER granting 2 Motion for Leave to Proceed In Forma Pauperis, without prepayment of costs or fees or the necessity of giving security therefore. Plaintiff shall be responsible for service by waiver or of the summons and complaint. Signed by Judge G Murray Snow on 8/10/16.
7
08/11/2016
Summons Issued as to Carolyn W Colvin, U.S. Attorney and U.S. Attorney General.
1
Summons
2
https://ecf.azd.uscourts.gov/doc1/025116248102" onClick="goDLS{{'/doc1/025116248102','994202','20','','2','1','',''}};">2</a> Summons) (3 total)
2 Attachments
8
08/11/2016
ORDER - IT IS HEREBY ORDERED directing the Clerk of Court to terminate any or all Defendants in this matter, without further notice, that have not been served within the time required by Fed. R. Civ. P. 4(m) on November 9, 2016. (See document for further details). Signed by Judge G Murray Snow on 8/10/16.
9
08/11/2016
SOCIAL SECURITY SCHEDULING ORDER: Within sixty (60) days after the answer is filed, Plaintiff must file an opening brief. Defendant must file an answering brief within thirty (30) days after service of Plaintiff's opening brief. Plaintiff may file a reply brief within fifteen (15) days after service of Defendant's brief. (See document for full details). Signed by Judge G Murray Snow on 8/10/16.
08/16/2016
PRO HAC VICE FEE PAID. $ 35, receipt number PHX175237 as to Howard D Olinsky. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
10
08/16/2016
ORDER pursuant to General Order 09-08 granting 5 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
11
09/08/2016
* SERVICE EXECUTED filed by Alice Ann Shepherd: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office on 8/29/16, Office of General Counsel on 8/29/16 and Attorney General on 8/31/16. * Modified to add text clarifying service dates on 9/9/2016
12
09/22/2016
NOTICE OF ATTORNEY APPEARANCE: Heather Griffith appearing for Carolyn W Colvin.
13
10/31/2016
ANSWER to 1 Complaint by Carolyn W Colvin.
14
10/31/2016
NOTICE of Filing Certified Copy of Administrative Transcript re: 13 Answer to Complaint filed by Carolyn W Colvin.
1
001 Certification Page
2
002 Court Transcript Index
3
003 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
004 Payment Documents and Decisions
5
005 Jurisdictional Documents and Notices
6
006 Non Disability Related Development
7
007 Disability Related Development
8
008 Medical Records
8 Attachments
15
12/30/2016
OPENING BRIEF by Alice Ann Shepherd Social Security appeal.
16
01/30/2017
First MOTION for Extension of Time to File Responsive Brief, Unopposed by Commissioner of Social Security Administration.
1
Text of Proposed Order
1 Attachment
17
01/30/2017
DECLARATION of Heather Griffith re: [16] First MOTION for Extension of Time to File Responsive Brief, Unopposed by Defendant Commissioner of Social Security Administration.
18
01/31/2017
ORDER granting [16] Motion for Extension of Time: Defendant shall have to and including March 1, 2017, to file a responsive brief. Signed by Judge G Murray Snow on 1/31/2017.
19
03/01/2017
RESPONSE BRIEF by Commissioner of Social Security Administration.
20
06/23/2017
ORDER - The ALJ's decision is AFFIRMED. The Clerk of Court is directed to enter judgment accordingly. Signed by Judge G Murray Snow on 6/23/17.
21
06/23/2017
CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed June 23, 2017, the Decision of the Commissioner of Social Security is AFFIRMED and this action is hereby terminated.
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