Heather Rounds v. Commissioner Social Security , 807 F.3d 996 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HEATHER ROUNDS, No. 13-35505
Plaintiff-Appellant,
D.C. No.
v. 3:12-cv-00342-
MA
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant-Appellee. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, Senior District Judge, Presiding
Submitted May 7, 2015*
Portland, Oregon
Filed August 4, 2015
Amended December 7, 2015
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 ROUNDS V. COMM’R OF SOC. SEC.
Before: William A. Fletcher and Andrew D. Hurwitz,
Circuit Judges and Michael M. Baylson,** Senior District
Judge.
Opinion by Judge Baylson
SUMMARY***
Social Security
The panel affirmed in part, and vacated in part, the
district court’s affirmance of the Commissioner of Social
Security Administration’s denial of claimant’s application
for Supplemental Security Income, and remanded for
further proceedings.
The panel held that the Administrative Law Judge
(“ALJ”) failed to reconcile an apparent conflict between a
vocational expert’s testimony and the Dictionary of
Occupational Titles, and that the error was not harmless.
The panel remanded for the ALJ to determine whether
there was a reasonable explanation to justify relying on the
vocational expert’s testimony.
**
The Honorable Michael M. Baylson, Senior District Judge for the
U.S. District Court for the Eastern District of Pennsylvania, sitting by
designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ROUNDS V. COMM’R OF SOC. SEC. 3
The panel held that the ALJ must determine whether
the claimant established fibromyalgia as a medically
determinable impairment under the 2010 diagnostic
criteria, and because the ALJ had not yet made this
determination it may moot claimant’s other arguments
concerning her fibromyalgia diagnosis. The panel,
accordingly, did not reach claimant’s other arguments
concerning her fibromyalgia diagnosis.
The panel held that the ALJ’s residual functional
capacity determination adequately incorporated the
opinions of Dr. McKenna and Dr. Boyd. The panel also
held that the ALJ did not improperly reject claimant’s
testimony. The panel further held that the ALJ did not err
in the consideration of lay witness testimony.
COUNSEL
Tim Wilborn, Wilborn Law Office, P.C., Las Vegas,
Nevada, for Plaintiff-Appellant.
S. Amanda Marshall, United States Attorney, Ronald K.
Silver, Assistant United States Attorney, David Morado,
Regional Chief Counsel, Region X, and Thomas M.
Elsberry, Assistant Regional Counsel, Seattle, Washington,
for Defendant-Appellee.
4 ROUNDS V. COMM’R OF SOC. SEC.
ORDER
The opinion filed on August 4, 2015, and published at
795 F.3d 1177, is hereby amended and replaced by the
amended opinion filed concurrently with this order.
With these amendments, Judges W. Fletcher, Hurwitz,
and Baylson have voted to deny the petition for panel
rehearing. Judges W. Fletcher and Hurwitz have voted to
deny the petition for rehearing en banc, and Judge Baylson
so recommends.
The full court has been advised of the petition, and no
judge of the court has requested a vote on the petition for
rehearing en banc. Fed. R. App. P. 35.
The petitions for rehearing and rehearing en banc are
DENIED. No further petitions for rehearing or rehearing
en banc will be entertained.
OPINION
BAYLSON, District Judge:
Appellant Heather Rounds appeals from the district
court’s affirmance of the decision of a Social Security
Administration Administrative Law Judge (ALJ) denying
her application for Supplemental Security Income (SSI).
Although we find no error in the ALJ’s rulings on several
issues, we vacate in part and remand because the ALJ
failed to reconcile an apparent conflict between a
vocational expert’s (VE) testimony and the Dictionary of
Occupational Titles.
ROUNDS V. COMM’R OF SOC. SEC. 5
BACKGROUND
I. Rounds’ Self-Reported Activities and
Limitations
At the time of her SSI application, Rounds was 22 years
old, a high school graduate, and the mother of a five-year-
old daughter. She was living with her daughter, a
roommate/boyfriend named Gavin Lipscomb, and her two
cats. In the function report accompanying her application,
Rounds described difficulties with social interactions,
leaving the house, sleeping, remembering to eat and care
for herself, and remembering instructions. Nevertheless,
she stated that she was able to care for her daughter and her
cats, prepare simple meals, share house work with her
roommate, shop for groceries, and pay bills. Lipscomb
submitted a third-party function report that described
Rounds in similar terms, although he also noted that she
“sees no reason to want to work.” During her oral
testimony in August 2010, Rounds described similar daily
activities but also testified to experiencing intermittent
severe pain in her shoulders, neck, and back.
Rounds’ work history is limited to two short-lived jobs
as a cashier at a gas station and at a fast food restaurant.
She described such work as “hard and exhausting” due to
not fitting in with her co-workers and struggling to interact
with customers.
II. Rounds’ Medical History
For purposes of this appeal, we focus on whether
Rounds was disabled between March 10, 2009, the date of
her application, and September 3, 2010, the date of the
6 ROUNDS V. COMM’R OF SOC. SEC.
ALJ’s decision.1 In January 2009, Rounds visited Dr.
Molly McKenna for a comprehensive neuropsychological
examination. Dr. McKenna diagnosed Rounds with
(a) major depressive disorder, moderate, recurrent, in
partial remission, (b) social phobia, (c) pervasive
developmental disorder NOS (not otherwise specified), and
(d) cognitive disorder NOS. She also noted schizotypal
personality traits, recurrent headaches, and a variety of
psychosocial stressors. Dr. McKenna noted that Rounds
believed she related better to cats than to people, had a
difficult childhood, suffered abuse during a prior
relationship, and had a history of depression. Nevertheless,
she concluded Rounds is “independent for all activities of
daily living” and the “primary impediments to returning
[her] to full-time gainful employment are her severe social
anxiety, unusual beliefs and perceptions, limited verbal and
working memory, and poor mental organization.” Dr.
McKenna opined that “[w]ith appropriate placement in
training or employment, she is a good candidate to return to
work.”
In March and April 2009, Rounds attended five mental
health diagnostic and counseling sessions at the Multnomah
County Health Department.2 During her initial
appointment, she told the treating physician that she was
mainly interested in getting a letter so she could keep her
two cats. At various times she also stated that she did not
1
See 20 C.F.R. § 416.335 (SSI can only be paid beginning the month
after an application is filed).
2
Although the final chart note in these records is signed and dated
August 3, 2009, the final date of contact was April 24, 2009.
ROUNDS V. COMM’R OF SOC. SEC. 7
want to take medication due to a prior bad experience with
Prozac and that she was disinterested in therapy but willing
to try it.
Rounds’ medical records were reviewed in May 2009
by Dr. Joshua Boyd and Dr. Richard Alley, whose opinions
were used in the initial decision to deny her SSI claim. Her
records were reviewed again in July 2009 by Dr. Robert
Henry and Dr. Martin Kehrli, whose opinions were used in
the denial of Rounds’ request for reconsideration.
From August 2009 through at least August 2010,
Rounds met with a counselor from Lifeworks NW, Nicole
Warren. Warren diagnosed Rounds with generalized
anxiety disorder and dysthymic disorder, and treated her for
depression and anxiety. During these sessions, Rounds
twice admitted that one reason for seeking therapy was to
have documentation for her disability claim. However,
Warren also noted that Rounds “under reports her
problems” to medical providers and “can never think of
what to say at the doctor’s.” Rounds described to Warren
physical and lifestyle problems including severe shoulder
pain, difficulty interacting with other people, a possible
psychotic break while living in Virginia, and her inability
to pay to heat her apartment.
In February 2010, Rounds learned about the symptoms
of fibromyalgia.3 Suspecting that she might be afflicted
3
Fibromyalgia has previously been described by this Court as “a
rheumatic disease” with symptoms that include “chronic pain
throughout the body, multiple tender points, fatigue, stiffness, and a
pattern of sleep disturbance that can exacerbate the cycle of pain and
fatigue.” Benecke v. Barnhart, 379 F.3d 587, 589-90 (9th Cir. 2004).
“Fibromyalgia’s cause is unknown, there is no cure, and it is poorly-
8 ROUNDS V. COMM’R OF SOC. SEC.
with fibromyalgia, she returned to the Multnomah County
Health Department and was treated by Dr. Robert
Henriques. In February or March 2010, after noting that
Rounds “[c]ries with exam and recoils to minimal contact”
and had “multiple Tender points on exam,” it appears that
Dr. Henriques diagnosed Rounds with chronic fibromyalgia
syndrome and recommended yoga.4 The fibromyalgia
diagnosis was also mentioned in chart notes for
appointments on April 13, 2010 and May 13, 2010, during
which Dr. Henriques recommended exercise and stretches.
He also prescribed medications for pain, nausea, and sleep.
III. Procedural History
Rounds applied for SSI in March 2009, with a
protective filing date of March 10, 2009. She alleged that
she had been disabled since June 1, 2005, and listed her
disabilities as depression, schizophrenia, social phobias,
learning disabilities, cognitive problems, and recurring
understood within much of the medical community.” Id. at 590. It is
“diagnosed entirely on the basis of patients’ reports of pain and other
symptoms” and “there are no laboratory tests to confirm the diagnosis.”
Id.
4
The record is unclear but it appears that an undated, incomplete
chart note that described multiple tender points and diagnosed
fibromyalgia corresponds to an appointment on February 24, 2010
during which Rounds also had blood work done. This initial visit was
also noted by Rounds’ therapist. However, a “problem list” from the
Health Department indicates that fibromyalgia was first diagnosed on
March 12, 2010. The chart notes from the March 12 appointment do
not mention any tender points or fibromyalgia, but are also incomplete
and do not include the section “Assessment/Plan” where fibromyalgia
is mentioned after other appointments.
ROUNDS V. COMM’R OF SOC. SEC. 9
headaches. Rounds’ claim was denied on initial review and
again after reconsideration. While awaiting a hearing
before an ALJ, Rounds submitted an update alleging that in
February and March 2010 she was diagnosed with chronic
fibromyalgia syndrome.
In August 2010, an ALJ conducted a hearing and, in
September 2010, the ALJ issued his decision denying
Rounds’ claim. The ALJ followed the five-step evaluation
process set out at 20 C.F.R. § 416.920. At Step One, the
ALJ found that Rounds had not engaged in substantial
gainful activity since March 10, 2009. At Step Two, the
ALJ determined that Rounds had severe impairments
consisting of major depressive disorder, social phobia,
pervasive developmental disorder NOS and cognitive
disorder NOS. The ALJ concluded that the record was
insufficient to support a finding that fibromyalgia was a
medically determinable impairment.
At Step Three, the ALJ determined that Rounds had
mild restrictions in activities of daily living, marked
difficulties in social functioning, moderate difficulties with
concentration, persistence or pace, and no episodes of
decompensation. As a result, Rounds’ impairments did not
meet or equal one of the impairments listed in the Social
Security Regulations at 20 C.F.R. Part 404, Subpart P,
Appendix 1.
The ALJ determined that Rounds had the residual
functional capacity (RFC) to “perform a full range of work
at all exertional levels but with the following nonexertional
limitations: she can perform one to two step tasks with no
public contact, no teamwork and limited coworker
contact.” At Step Four, the ALJ determined that Rounds
had no past relevant work. Finally, at Step Five, the ALJ
relied on a vocational expert’s testimony that someone with
10 ROUNDS V. COMM’R OF SOC. SEC.
Rounds’ RFC could perform jobs that exist in the national
and local economy, including kitchen helper, hand
packager, and recycler/reclaimer. As a result, the ALJ
found Rounds was not disabled.
The Social Security Administration Appeals Council
denied Rounds’ appeal, making the ALJ’s decision the final
decision of the Commissioner. Rounds appealed to the
District Court, which considered the five issues presented
for review in this appeal and affirmed the ALJ’s decision.
JURISDICTION
The District Court had jurisdiction under 42 U.S.C.
§ 405(g). This Court has jurisdiction under 28 U.S.C.
§ 1291.
STANDARD OF REVIEW
This Court “review[s] the district court’s order
affirming the ALJ’s denial of social security benefits de
novo, and reverse[s] only if the ALJ’s decision was not
supported by substantial evidence in the record as a whole
or if the ALJ applied the wrong legal standard.” Molina v.
Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (citing
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008),
and Stone v. Heckler, 761 F.2d 530, 531 (9th Cir. 1985)).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion,” and “must be ‘more than a mere scintilla,’ but
may be less than a preponderance.” Id. at 1110–11 (quoting
Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir.2009)). This Court “must consider the evidence as
a whole, weighing both the evidence that supports and the
evidence that detracts from the Commissioner’s
conclusion.” Smolen v. Chater, 80 F.3d 1273, 1279 (9th
Cir. 1996). However, if “the evidence is susceptible to
ROUNDS V. COMM’R OF SOC. SEC. 11
more than one rational interpretation, we must uphold the
ALJ’s findings if they are supported by inferences
reasonably drawn from the record.” Molina, 674 F.3d at
1111. In addition, this Court “may not reverse an ALJ’s
decision on account of an error that is harmless.” Id.
Overall, the standard of review is “highly deferential.”
Valentine, 574 F.3d at 690.
DISCUSSION
Rounds contends that the ALJ erred by discrediting her
fibromyalgia diagnosis, ignoring opinions from two
psychologists, discounting her testimony, discounting other
lay witness testimony, and wrongly concluding at Step Five
that she could perform jobs that exceed her RFC. We begin
by discussing the ALJ’s Step Five findings because we
hold that they require remand to the ALJ.
I. The ALJ’s Step Five Findings
At Step Five, “the Commissioner has the burden ‘to
identify specific jobs existing in substantial numbers in the
national economy that [a] claimant can perform despite
[his] identified limitations.’” Zavalin v. Colvin, 778 F.3d
842, 845 (9th Cir. 2015) (quoting Johnson v. Shalala,
60 F.3d 1428, 1432 (9th Cir. 1995)). Based on a VE’s
testimony, the ALJ concluded that Rounds was capable of
performing at least three jobs: kitchen helper, hand
packager, and recycler/reclaimer. According to the
Dictionary of Occupational Titles (DOT), these jobs require
a GED Reasoning Level of Two. DOT (4th ed. 1991)
§ 318.687-010, 1991 WL 672755 (kitchen helper); id.
§ 920.587-018, 1991 WL 687916 (hand packager); id.
§ 929.687-022, 1991 WL 688172 (salvage laborer).
12 ROUNDS V. COMM’R OF SOC. SEC.
There are six GED Reasoning Levels that range from
Level One (simplest) to Level Six (most complex). Id.,
App. C, § III, 1991 WL 688702. The lowest two levels are:
Level 1: Apply commonsense understanding
to carry out simple one- or two-step
instructions. Deal with standardized
situations with occasional or no variables in
or from these situations encountered on the
job.
Level 2: Apply commonsense understanding
to carry out detailed but uninvolved written
or oral instructions. Deal with problems
involving a few concrete variables in or
from standardized situations.
Id. Rounds argues that the ALJ erred because her RFC
limitation to “one to two step tasks” exactly matches the
Level One standard of carrying out “simple one- or two-
step instructions” and is exceeded by the Level Two
standard of carrying out “detailed but uninvolved written or
oral instructions.”
This Court’s recent Zavalin opinion held that “[w]hen
there is an apparent conflict between the vocational
expert’s testimony and the DOT—for example, expert
testimony that a claimant can perform an occupation
involving DOT requirements that appear more than the
claimant can handle—the ALJ is required to reconcile the
inconsistency.” Zavalin, 778 F.3d at 846 (citing Massachi
v. Astrue, 486 F.3d 1149, 1153–54 (9th Cir. 2007)).
Pursuant to Social Security Ruling (SSR) 00-4p, the ALJ
has an affirmative duty to “ask the expert to explain the
conflict and ‘then determine whether the vocational
expert’s explanation for the conflict is reasonable’ before
relying on the expert’s testimony to reach a disability
ROUNDS V. COMM’R OF SOC. SEC. 13
determination.” Id. (quoting Massachi, 486 F.3d at 1152–
54); SSR 00-4p, 2000 WL 1898704, at *2, *4 (Dec. 4,
2000).
In Zavalin, this Court remanded to the ALJ because
“there [was] an apparent conflict between the residual
functional capacity to perform simple, repetitive tasks, and
the demands of Level 3 Reasoning,” which the ALJ had not
recognized and reconciled before relying on the VE’s
testimony. Id. at 846–48. We conclude that Zavalin—this
Court’s most recent holding regarding the review of a VE’s
testimony—controls the analogous facts of this case.
Here, the ALJ stated at the outset of the VE’s testimony
that “unless you tell me otherwise, I’ll assume that your
testimony is based on your knowledge, education, training,
and experience consistent with the DOT, does that work for
you, sir?”, to which the VE replied “Yes, sir.” Based on
that exchange, the ALJ concluded that the VE’s testimony
was consistent with the DOT. As a result, although the
VE’s testimony was ostensibly consistent with the DOT, he
never directly addressed whether Rounds’ limitation to
one- to two-step tasks was consistent with jobs requiring
Level Two reasoning and, if so, why.
Under these circumstances, Zavalin is controlling.
There was an apparent conflict between Rounds’ RFC,
which limits her to performing one- and two-step tasks, and
the demands of Level Two reasoning, which requires a
person to “[a]pply commonsense understanding to carry out
detailed but uninvolved written or oral instructions.” The
conflict between Rounds’ RFC and Level Two reasoning is
brought into relief by the close similarity between Rounds’
RFC and Level One reasoning. Level One reasoning
requires a person to apply “commonsense understanding to
carry out simple one- or two-step instructions.” The
14 ROUNDS V. COMM’R OF SOC. SEC.
Commissioner resists the obvious similarity between
Rounds’ RFC and Level One reasoning, and the
concomitant contrast between Rounds’ RFC and Level
Two reasoning, by stressing that “task” and “instruction”
are different terms. In the Commissioner’s view, Rounds’
inability to complete multi-step tasks does not necessarily
contradict the VE’s opinion that she has the ability to
follow detailed instructions, as required in Level Two jobs.
Based on the record, we disagree. Only tasks with more
than one or two steps would require “detailed” instructions.
And these are precisely the kinds of tasks Rounds’ RFC
indicates she cannot perform.
Because the ALJ did not recognize the apparent conflict
between Rounds’ RFC and the demands of Level Two
reasoning, the VE did not address whether the conflict
could be resolved. As a result, we “cannot determine
whether substantial evidence supports the ALJ’s step-five
finding.” Id. at 848 (quoting Massachi, 486 F.3d at 1154).
On remand, the ALJ must determine whether there is a
reasonable explanation to justify relying on the VE’s
testimony.5 See id. at 846–48; Massachi, 486 F.3d at 1153–
54; see also Tommasetti, 533 F.3d at 1042 (“[A]n ALJ
‘may rely on expert testimony which contradicts the DOT,
but only insofar as the record contains persuasive evidence
to support the deviation.’” (quoting Johnson, 60 F.3d at
1435)).
5
Alternatively, the VE may be able to identify other jobs that require
Level One reasoning and are suitable for someone with Rounds’ other
limitations.
ROUNDS V. COMM’R OF SOC. SEC. 15
The ALJ’s failure to reconcile this apparent conflict
was not harmless. In his RFC assessment, the ALJ did not
merely restrict Rounds to “simple” or “repetitive” tasks.6
Instead, he expressly limited her to “one to two step tasks,”
apparently to address her “moderate” problems with
memory and concentration. There is no explanation in the
record as to why the VE or the ALJ may have believed that
Rounds’ specific limitation to “one to two step tasks”
should not be taken at face value. As such, the record does
not support a conclusion that the ALJ’s failure to resolve
this apparent conflict was harmless error. This Court
“cannot affirm the decision of an agency on a ground that
the agency did not invoke in making its decision.” Zavalin,
778 F.3d at 848 (quoting Stout v. Comm’r, Soc. Sec.
Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)) (holding that
ALJ’s failure to reconcile apparent conflict between RFC
and DOT was not harmless error).7
6
Unpublished decisions of panels of this Court and opinions from
some of our sister circuits have concluded that an RFC limitation to
“simple” or “repetitive” tasks is consistent with Level Two reasoning.
See Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010); Abrew v.
Astrue, 303 F. App’x 567, 569 (9th Cir. 2008) (unpublished); Lara v.
Astrue, 305 F. App’x 324, 326 (9th Cir. 2008) (unpublished); Hackett
v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005); Money v. Barnhart,
91 F. App’x 210, 215 (3d Cir. 2004) (unpublished). These decisions are
inapposite because they did not consider a specific limitation to “one to
two step tasks.”
7
In addition to the contentions discussed here, Rounds also contends
that the ALJ erred at Step Five because the hypotheticals presented to
the VE omitted limitations related to fibromyalgia, the medical
opinions of Dr. McKenna and Dr. Boyd, and the lay testimony of
Rounds, Lipscomb, and Davidson. She further argues, without citation,
that the kitchen helper job conflicts with her RFC because it may
16 ROUNDS V. COMM’R OF SOC. SEC.
II. The ALJ’s Consideration of the Fibromyalgia
Diagnosis
Rounds argues that the ALJ erred by (a) failing to
develop the record of her fibromyalgia diagnosis,
(b) relying on the opinions of medical experts who
reviewed her records before the fibromyalgia diagnosis or
who question the existence of fibromyalgia, and
(c) substituting the ALJ’s own assessment of the
fibromyalgia diagnostic criteria for that of her treating
physician. However, we need not reach these arguments.8
After the ALJ’s decision in this case, the Commissioner
adopted SSR 12-2p, which designates two separate sets of
diagnostic criteria that can establish fibromyalgia as a
medically determinable impairment. SSR 12-2p, 2012 WL
3104869, at *2–3 (Jul. 25, 2012). These criteria, published
by the American College of Rheumatology in 1990 and
2010, were both available at the time of Rounds’ August
2010 hearing and the ALJ’s September 2010 decision.9
involve extensive co-worker contact. As discussed below, the ALJ
appropriately considered and incorporated the evidence from Dr.
McKenna, Dr. Boyd, Rounds, Lipscomb, and Davidson. If the ALJ
determines on remand that Rounds has proven that fibromyalgia is a
medically determinable impairment, the ALJ will need to determine
whether and, if so, how that diagnosis changes Rounds’ RFC and the
Step Five analysis.
8
We also do not reach the Commissioner’s argument, adopted by the
District Court, that the ALJ fulfilled any duty to develop the record by
leaving the record open for two weeks after the hearing.
9
The 2010 diagnostic criteria were published in Frederick Wolfe, et
al., The American College of Rheumatology Preliminary Diagnostic
Criteria for Fibromyalgia and Measurement of Symptom Severity,
ROUNDS V. COMM’R OF SOC. SEC. 17
However, it appears that the ALJ considered only the 1990
diagnostic criteria and did not consider the 2010 criteria.10
Many of Rounds’ symptoms (e.g., cognitive and memory
problems, poor sleep, depression, anxiety, headaches,
fatigue, dizziness, and nausea) appear to fit the 2010
criteria better than the 1990 criteria. Id. at *2–3 & n.9. To
be fair to Rounds, and to be consistent with the
Commissioner’s binding ruling in SSR 12-2p that applies
on remand, the ALJ must determine whether Rounds
established fibromyalgia as a medically determinable
impairment under the 2010 diagnostic criteria. See
20 C.F.R. § 402.35(b)(1) (providing that SSRs “are binding
on all components of the Social Security Administration”).
Because the ALJ has not yet made this determination and it
may moot Rounds’ other arguments regarding her
fibromyalgia diagnosis, we need not reach Rounds’ other
arguments at this time.
62 Arthritis Care & Research 600 (May 2010), available at
https://www.rheumatology.org/ACR/practice/clinical/classification/fibr
omyalgia/2010_Preliminary_Diagnostic_Criteria.pdf.
10
The ALJ concluded that fibromyalgia’s “signs are primarily the
tender points” and that “merely stating ‘multiple’ tender points were
positive is not enough.” However, in contrast to the 1990 criteria, the
2010 diagnostic criteria do not require a specific number of tender
points in specific locations. See SSR 12-2p, 2012 WL 3104869, at *2–
3. As the Commissioner later ruled, the 2010 criteria can be used to
determine that fibromyalgia is a medically determinable impairment “if
the case record does not include a report of the results of tender-point
testing, or the report does not describe the number and location on the
body of the positive tender points.” Id. at *3 n.6.
18 ROUNDS V. COMM’R OF SOC. SEC.
III. The ALJ’s Evaluation of Medical Opinions
Rounds argues that the ALJ erred by ignoring Dr.
Boyd’s opinion (also adopted by Dr. Rullman) that Rounds
has moderate limitations in her ability to accept instructions
and respond appropriately to criticism from supervisors.
This “opinion” was a checkbox in Dr. Boyd’s “Summary
Conclusions” and was not repeated in his narrative
“Functional Capacity Assessment.”
The ALJ did not ignore Dr. Boyd’s opinion; rather, he
explicitly noted that Dr. Boyd had checked this box and
gave the whole of Dr. Boyd’s opinion, including the
narrative portion, “great weight” in crafting Rounds’ RFC.
Rounds also argues that the ALJ improperly rejected
some of Dr. McKenna’s “Treatment Recommendations”
that Rounds should (a) avoid math or use a calculator,
(b) write information down and use various memory aids,
(c) request that instructions be repeated and provided both
verbally and in writing, and (d) limit customer or public
contact. However, Dr. McKenna’s formal conclusions were
set out in a separate section of her report subtitled “Clinical
Formulation/Prognosis” and Rounds does not contend that
the ALJ ignored those conclusions. An ALJ may rationally
rely on specific imperatives regarding a claimant’s
limitations, rather than recommendations. Carmickle v.
Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir.
2008). In addition, the ALJ is responsible for translating
and incorporating clinical findings into a succinct RFC. See
Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir.
2008).
We hold that the ALJ’s RFC determination—which
limited Rounds to “one to two step tasks with no public
contact, no teamwork and limited coworker contact”—
ROUNDS V. COMM’R OF SOC. SEC. 19
adequately incorporated the opinions of Dr. McKenna and
Dr. Boyd.
IV. The ALJ’s Consideration of Rounds’
Testimony
Rounds argues that the ALJ improperly rejected her
testimony. Having determined that Rounds’ medically
determinable impairments could reasonably be expected to
cause her alleged symptoms, “the ALJ may reject the
claimant’s testimony regarding the severity of her
symptoms only if he makes specific findings stating clear
and convincing reasons for doing so.” Smolen, 80 F.3d at
1284. “The ALJ must state specifically which symptom
testimony is not credible and what facts in the record lead
to that conclusion.” Id. To assess a claimant’s credibility,
the ALJ may consider, among other factors, “ordinary
techniques of credibility evaluation,” “inadequately
explained failure to seek treatment or to follow a prescribed
course of treatment,” and “the claimant’s daily activities.”
Id. The ALJ must also consider factors including the
“observations of treating and examining physicians and
other third parties regarding . . . the claimant’s symptom[s];
. . . functional restrictions caused by the symptoms; and the
claimant’s daily activities.” Id.
Here, the ALJ considered Rounds’ written and oral
testimony and concluded that Rounds’ “statements
concerning the intensity, persistence and limiting effects of
[her] symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity
assessment.” The ALJ explicitly did “not discount the
claimant’s consistent report of significant difficulties,
particularly with interpersonal relationships.” In support of
these conclusions, the ALJ reviewed and summarized the
lay and expert testimony in the record. To justify
20 ROUNDS V. COMM’R OF SOC. SEC.
discounting Rounds’ testimony about the severity of her
symptoms, the ALJ concluded that her medical records
show a higher level of functionality, that she has been
uncooperative regarding use of medications and engaging
in therapy, and that she appears to access support resources
only when she has secondary motivations.
Taken in context, the ALJ’s determination of Rounds’
RFC was based on the totality of Rounds’ and her
roommate’s testimony about her daily activities and the
opinions of Dr. McKenna and Dr. Boyd regarding her
functional capabilities. This evidence provides clear and
convincing reasons for discounting Rounds’ testimony
regarding the severity of her symptoms. See Molina,
674 F.3d at 1112–14 (affirming ALJ’s decision to discount
claimant’s testimony based on inconsistencies with her
daily activities and the medical evidence, and her failure to
seek or follow prescribed treatment); Matney ex rel.
Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992)
(affirming ALJ’s decision to discount claimant’s pain
testimony based on his doctor’s report, his daily activities,
and his secondary motive to seek disability benefits). We
discern no error in the ALJ’s consideration of Rounds’
testimony.
V. The ALJ’s Consideration of Lay Witness
Testimony
Rounds argues that the ALJ improperly rejected lay
witness testimony from Rounds’ roommate, Lipscomb,
who stated that Rounds needs instructions repeated and has
trouble focusing on and finishing tasks. She also argues that
the ALJ ignored a lay witness statement from an Oregon
state employee, Gary Davidson, who noted that Rounds had
memory problems and concluded that she was unable to
work outside a sheltered work environment. “[C]ompetent
ROUNDS V. COMM’R OF SOC. SEC. 21
lay witness testimony ‘cannot be disregarded without
comment’” and “in order to discount competent lay witness
testimony, the ALJ ‘must give reasons that are germane to
each witness.’” Molina, 674 F.3d at 1114 (quoting Nguyen
v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) and Dodrill
v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)) (emphasis
omitted).
With respect to Lipscomb, the ALJ described his
statement as generally consistent with Rounds’ testimony
and statements, accepted it “as descriptive of his
perceptions,” but concluded that “it does not provide
sufficient support to alter the RFC arrived at herein.” The
ALJ also noted that Lipscomb’s statement indicated that
Rounds sees no reason to want to work, suggesting a
secondary motive for applying for SSI. It is not clear that
the ALJ rejected Lipscomb’s statement at all. The ALJ
limited her RFC to one- to two-step tasks, which addressed
her memory and focus problems. Even if the ALJ
discounted his statement, Lipscomb’s admission that
Rounds has a secondary motive for seeking SSI was a
germane reason for doing so.
As for Davidson, even assuming that he was a
“competent lay witness,” the ALJ’s failure to consider his
comments was harmless. Davidson was Rounds’ appointed
representative for filing her SSI claim. As her advocate, he
was not a typical lay witness. Even if he qualified as a lay
witness, most of his comments were in the form of
conclusions that Rounds is disabled and unable to work
outside of a sheltered work environment. These are
ultimate determinations reserved to the ALJ. See
Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001)
(noting that even a treating physician’s opinion is not
binding on the ultimate determination of disability).
Davidson’s non-conclusory comments refer to “memory
22 ROUNDS V. COMM’R OF SOC. SEC.
problems” and were addressed in the RFC by limiting
Rounds to one- to two-step tasks. Accordingly, to the
extent the ALJ may have failed to consider Davidson’s lay
witness evidence, the error was harmless because it was
“inconsequential to the ultimate nondisability
determination.” Molina, 674 F.3d at 1115.
CONCLUSION
We affirm in part, vacate in part, and remand to the
District Court so that it may remand to the agency for
further proceedings consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.
Each party shall bear its own costs on appeal.