United States District Court, D. Oregon, Eugene Division
RUTH A. SCHNELLE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
E. Jones, Senior Judge United States District Court
Ruth Schnelle (plaintiff) seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (the Commissioner) denying her application for
Disability Insurance Benefits (DIB) under Title II of the
Social Security Act. Because the Commissioner's decision
is supported by substantial evidence, the decision is
protectively filed an application for DIB on May 16, 2008.
Admin. R. 185. Her application was denied initially and on
reconsideration, and she requested a hearing before an
administrative law judge (ALJ). Admin. R, 121-24, 129-32. On
January 20, 2011, a hearing was held before ALJ John Madden,
Admin. R. 42. On February 18, 2011, ALJ Madden issued a
decision finding plaintiff not disabled. Admin. R. 9-26. The
Appeals Council denied plaintiffs request for review. Admin.
requested review in this court and on May 2, 2013, Judge
Hubel issued an Order of Remand based on the stipulation of
the parties, reversing the ALJ's decision and remanding
the case for further proceedings. Admin. R, 761-62. On
remand, ALJ Kelly Wilson held an administrative hearing on
April 22, 2015. Admin. R. 669. On June 22, 2015, ALJ Wilson
issued a decision denying plaintiffs claim. Admin. R. 634-68.
The Appeals Council denied review and the ALJ's decision
became the final order of the Commissioner. Plaintiff now
seeks review of that decision.
was born 1960 and was 50 years old on her date last insured,
March 31, 2010. Admin. R. 20, 51. She completed high school
and attended two years of college. Admin. R. 52-53. She has
past work experience as a truck driver, a bottle washer, and
a car deliverer. Admin. R. 147. Plaintiff alleges disability
due to cervical and lumbar degenerative disc disease with
radiculopathy after a cervical fusion, peripheral edema in
the legs, fibromyalgia, morbid obesity, posttraumatic stress
disorder, depressive disorder, and plantar fasciitis.
performed the sequential analysis described in 20 C.F.R
section 404.1520. At step one, she found plaintiff had not
engaged in substantial gainful activity since her alleged
onset date of May 1, 2005 through her date last insured of
March 31, 2010. Admin. R. 639. At step two, the ALJ concluded
plaintiff suffered the following severe impairments: morbid
obesity, sleep apnea, degenerative disc disease of the
cervical spine status-post fusion surgery, degenerative disc
disease of the lumbar spine, hypertension with edema,
depressive disorder, and anxiety disorder. Admin. R. 639-40.
At step three, the ALJ determined plaintiff did not have an
impairment or combination of impairments that met or
medically equaled a listed impairment. Admin. R. 643.
next assessed plaintiffs residual functional capacity (RFC)
and found that she retains the capacity to perform light work
with the following limitations: she can lift and carry 20
pounds occasionally and 10 pounds frequently, and sit in
2-hour intervals for a total of at least 6 hours in an 8-hour
workday; she can stand and/or walk in 30-minute intervals for
up to 6 hours in an 8-hour workday; she can occasionally
kneel, crouch, crawl, and climb ramps and stairs but cannot
climb ladders, ropes, or scaffolds; she must avoid
concentrated exposure to vibration, fumes, odors, gases, poor
ventilation, and all exposure to hazards such as dangerous
working machinery or unprotected heights; and she can perform
simple tasks of reasoning level 1 to 3 in a low-stress job,
defined as requiring only occasional decision making and
occasionally adaptation to change that does not involve
high-volume production pace, such as high-volume assembly
line. Admin. R. 645.
four, the ALJ found plaintiff is unable to perform any of her
past relevant work. Admin. R. 658. At step five, the ALJ
found that plaintiff retained the RFC to perform jobs that
exist in significant numbers in the national economy,
including photo copy machine operator, office helper, and
ticket seller. Admin. R. 659. The ALJ therefore concluded
plaintiff was not disabled. Admin, R. 660.
district court must affirm the Commissioner's decision if
it is based on the proper legal standards and the findings
are supported by substantial evidence. 42 U.S.C. §
405(g); see also Hammock v. Bowen, 879 F.2d 498, 501
(9th Cir. 1989). "Substantial evidence" means 81
F.3d 821, 830 (9th Cir. 1995). A treating doctor's
opinion that is not contradicted by the opinion of another
physician can be rejected only for "clear and
convincing" reasons. Baxter v. Sullivan, 923
F.2d 1391, 1396 (9th Cir. 1991). If a treating or examining
doctor's opinion is contradicted by another doctor's
opinion, it may be rejected by specific and legitimate
reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216
(9th Cir. 2005).
Treating Physician's Assistant Amy Scheer, PA-C
argues that the ALJ improperly rejected the opinion of
treating physician's assistant Amy Scheer, PA-C. Ms.
Scheer opined that plaintiff could not perform light or
medium work due to her fibromyalgia. Admin. R. 582-83. She
stated that plaintiff "may" be able to perform
sedentary work. Id. As a physician's assistant,
Ms. Scheer was an "other" medical source under the
Regulations, and the ALJ was required to provide germane
reasons for rejecting her opinion. Molina v. Astrue,
674 F.3d 1104, 1111 (9th Cir. 2012); 20 C.F.R. §
the ALJ noted that Ms. Scheer's opinion that plaintiff
was limited by fibromyalgia was not supported by the medical
record because plaintiffs fibromyalgia was not a medically
determinable impairment. Admin. R. 640-41, 655. The ALJ may
assign less weight to a medical opinion that is inconsistent
with the overall medical record or unsupported by clinical
findings. 20 C.F.R. § 404.1527(c)(4). Here, there
appears to be no examination or clinical findings in the
record to support a diagnosis of fibromyalgia. Further, the
clinical findings in the record do not support such a
diagnosis. For example, plaintiff exhibited fair to good
range of motion on examination in February, 2007. Admin. R.
506. Ms. Scheer also noted that plaintiff was able to go
grocery shopping and perform activities such as packing and
lifting, which conflicts with her opinion that plaintiff was
capable of very little standing and lifting. Admin. R. 582.