United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Yim You United States Magistrate Judge
Melissa Lea O'Neil (“O'Neil”), seeks
judicial review of the final decision by the Social Security
Commissioner (“Commissioner”) denying her
applications for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
(“SSA”), 42 U.S.C. §§ 401-433, and
Supplemental Security Income (“SSI”) under Title
XVI of the SSA, 42 U.S.C. §§ 1381-1383f. This court
has jurisdiction to review the Commissioner's decision
pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3).
All parties have consented to allow a Magistrate Judge to
enter final orders and judgment in this case in accordance
with F.R.C.P. 73 and 28 U.S.C. § 636(c). For the reasons
set forth below, that decision is AFFIRMED.
protectively filed for DIB and SSI on June, 27, 2011,
alleging a disability onset date of August 28, 2010. Tr.
128-30. Her applications were denied initially and
on reconsideration. Tr. 197, 206. On September 24, 2013, a
hearing was held before Administrative Law Judge
(“ALJ”) Ted W. Neiswanger. Tr. 86-127. The ALJ
issued a decision on October 31, 2013, finding O'Neil not
disabled. Tr. 67-77. The Appeals Council denied a request for
review on July 23, 2015. Tr. 1-3. Therefore, the ALJ's
decision is the Commissioner's final decision subject to
review by this court. 20 C.F.R. §§ 404.981,
June, 1973, O'Neil was 40 years old at the time of the
hearing before the ALJ. Tr. 128-29. In addition to a high
school diploma, she took one year of college courses, and has
past relevant work experience as a caregiver, phlebotomist,
nursery school attendant, and receptionist. Tr. 75.
O'Neil alleges she is unable to work due to the combined
impairments of obesity, a cervical spine condition causing
pain, bilateral knee problems, left shoulder impingement,
myofascial pain, stomach problems, and depression. Tr. 69-70,
was injured in a 2007 motor vehicle accident in which she was
ejected from her vehicle and sustained a concussion and
fractures in her cervical spine and left clavicle. Tr.
397-98. She subsequently underwent surgery, including a
fusion of C5-C6-C7 and discectomy. Tr. 386-90, 403.
Later that year, O'Neil was diagnosed with a medial
meniscal tear in her right knee, for which she had a
meniscectomy in April 2008. Tr. 416- 18.
2008, O'Neil reported neck pain, headache, and depression
following physical therapy for her knees. Tr. 423. She had an
MRI the following month that showed mild foraminal narrowing
at two levels of the cervical spine. Tr. 453. By September,
O'Neil indicated she had used up all of her pain and
depression medication, and complained of knee pain and
instability. Tr. 473. She received a cortisone injection. Tr.
year later in August 2009, O'Neil sought treatment for
acute abdominal pain. Tr. 544. She also reported upper back
and neck pain. Id. She was provided Percocet for
thoracic pain, and diagnosed with cervical radiculitis.
Id. By December, O'Neil reported abdominal pain,
but had no other complaints. Tr. 542.
January 2010, O'Neil indicated she had fallen down,
injuring her shoulders and neck. Tr. 540. She was diagnosed
with a neck strain and provided Vicodin. Id. In
March, O'Neil had an MRI that showed a solid fusion of
C5-C7, as well as C5-6 degenerative disc disease. Tr. 523.
O'Neil underwent another discectomy and fusion later that
month to address the C5-6 level. Tr. 498.
September 2010, O'Neil reported resolution of her
pre-operative complaints, but indicated that she had
experienced considerable left shoulder pain throughout the
summer. Tr. 564, 566, 696. In October, she was diagnosed with
left shoulder impingement syndrome. Tr. 627.
established care with Michael Boespflug, M.D., in January
2011. Tr. 820. He noted chronic neck pain with mild hand
numbness, but no radiculopathy. He also assessed myofascial
pain syndrome in the neck and upper back. Tr. 820. O'Neil
repeatedly experienced shoulder and neck pain over the
following months, despite doing stretching exercises and
physical therapy and taking anti-inflammatory medication. Tr.
September 2011, O'Neil reported a sudden onset of right
knee pain while walking. Tr. 723. An MRI showed a full
thickness cartilaginous tear involving the lateral femoral
condyle. Tr. 731. She subsequently had arthroscopic surgery
to address the medial and lateral condyle. Tr. 798.
O'Neil continued to report tenderness in her neck and
shoulder, and Dr. Boespflug diagnosed cervical radiculopathy
with myofascial pain syndrome and right knee arthritis.
Id. Her left shoulder pain worsened again in January
2012. Tr. 679, 794. She was reported to be markedly depressed
during her cervical surgery recovery. Tr. 681. A cervical MRI
in February 2012 showed no spinal stenosis, with stable lower
cord atrophy and myelomalacia. Tr. 677. Mild degenerative
changes were noted at the cervical fusion levels. Tr. 678.
April 2012, O'Neil reported significant right
knee soreness causing her to limp for which she received a
steroid injection. Tr. 712. An MRI of her left knee
the following month revealed a tear in the meniscus root. Tr.
737. In June, Dr. Boespflug diagnosed internal left knee
derangement with meniscal tear and cyst and trachantric
bursitis/tendinitis in the right hip, and continued to
diagnose myofascial pain syndrome in the left side of the
neck. Tr. 786. In the following months, O'Neil was
diagnosed with irritable bowel syndrome (“IBS”),
and had another arthroscopic knee procedure. Tr. 879, 883,
September 18, 2012, Dr. Boespflug completed a questionnaire
prepared by O'Neil's attorney. Tr. 837-40. The doctor
set forth O'Neil's multiple diagnoses, and noted she
could reach in front of her torso less than one third of the
day on the left side, and would require breaks following the
performance of fine and gross manipulations. See Id.
He opined O'Neil would not be able to complete a normal
workday two days per month due to her impairments. Tr. 840.
Two months later, O'Neil had another left knee steroid
injection. Tr. 875.
January 2013, O'Neil reported that she was no longer able
to attend pool physical therapy. Tr. 899. She continued to
endorse left-sided neck pain and bilateral knee pain.
Id. She was advised to find a way to continue pool
physical therapy and to attempt to lose weight. Id.
Her left knee pain worsened again in April 2013. Tr. 897.
2013, x-rays of O'Neil's bilateral knees showed
moderate-to-severe osteoarthtritic changes on the right and
moderate changes on the left. Tr. 864. Depression and obesity
were also indicated. Id. She received injections in
both knees the following month. Tr. 859. At that time, it was
noted that her gait was a “little bit shuffling”
but not terrible. Id. The doctor again discussed
weight loss with her. Id. The day after receiving
these injections, O'Neill returned to the doctor and
reported she had fallen at home and landed on her left
shoulder. Tr. 893. Weight loss was again discussed, and she
was commended for having lost some weight. Id.
is the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). The ALJ engages in a five-step sequential
inquiry to determine whether a claimant is disabled within
the meaning of the Act. 20 C.F.R. §§ 404.1520,
416.920; Tackett v. Apfel, 180 F.3d 1094, 1098-99
(9th Cir. 1999).
one, the ALJ determines if the claimant is performing
substantial gainful activity. If so, the claimant is not
disabled. 20 C.F.R. §§ ...