United States District Court, D. Oregon, Portland Division
SHALON E. DITTLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
E. Jones Senior Judge United States District Court.
Shalon Dittler appeals the Commissioner's decision
denying her application for disability insurance benefits
under Title II of the Social Security Act. The court has
jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the
filed a previous claim alleging disability due to migraines,
asthma, and depression. Admin. R. 234. In a decision dated
January 22, 2013, the Commissioner determined that Dittler
was not disabled at any time up to and including that date.
Admin. R. 96. In her present claim, Dittler alleges she
became disabled on January 23, 2013, the day after the
previous determination that she was not disabled. Admin. R.
16, 35. She alleges disability due to an increase in the
severity of the impairments alleged in her previous claim.
Admin. R. 16-17, 234. Dittler's insured status under the
Social Security Act expired on December 31, 2016. Admin. R.
16. She must establish that she became disabled on or before
that date to prevail on her claim. 42 U.S.C. §
423(a)(1)(A). Tidwell v. Apfel, 161 F.3d 599, 601
(9th Cir. 1998). Accordingly, the relevant period for the
claim now on appeal runs from January 22, 2013 through
December 31, 2016.
applied the five-step disability determination process
described in 20 C.F, R. § 404.1520. See Bowen v.
Yuckert, 482 U.S. 137, 140(1987). Admin. R. 19-25. The
ALJ found that, during the relevant period, Dittler's
ability to perform basic work activities was limited by
asthma, migraines, depression, and PTSD. Admin. R. 19. She
found that, despite these impairments, Dittler retained the
residual functional capacity ("RFC") to perform
work requiring light exertion with limited postural
activities such as crouching, stooping, climbing and so
forth, limited exposure to respiratory irritants, and no
exposure to extreme cold, loud noise, or workplace hazards.
The ALJ found Dittler retained the capacity to perform tasks
and work with instructions consistent with unskilled and
entry level semiskilled jobs. Admin, R. 20.
vocational expert ("VE") testified that a person
with Dittler's vocational, factors and RFC could perform
the activities required for a number of light, entry level
occupations, such as sales clerk, gate guard, and merchandise
marker, which together represent over one million jobs in the
national economy. Admin. R. 24-25, 71 -72. The ALJ concluded
that Dittler had not shown she was disabled within the
meaning of the Social Security Act during the period that is
relevant for her claim. Admin. R. 25.
district court must affirm the Commissioner's decision if
it is based on proper legal standards and the findings of
fact are supported by substantial evidence in the record as a
whole. 42 U.S.C. § 405(g); Batson v. Comm'r of
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
Substantial evidence need riot be a preponderance; it is such
relevant evidence that a reasonable person might accept as
adequate to support a conclusion. Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006). The
Commissioner's factual findings must be upheld if
supported by inferences reasonably drawn from the record,
even if another rational interpretation is also supported.
Batson, 359 F.3d at 1193; Andrews v.
Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).
plaintiff bears the burden of showing that the ALJ erred and
that any error was harmful. McLeod v. Astrue, 640
F.3d 881, 886-87 (9th Cir. 2011). Dirtier contends the ALJ
erroneously discounted the opinion of her treating physician,
Daniel Constien, M.D., and failed to give proper weight to a
rating decision by the Department of Veterans Affairs
further background, the record reflects that Dirtier began to
exp erience migraines in about 2006 and that her symptoms
have been consistent since 2007. Admin. R. 86-87, 310. Dr.
Constien has been Dittler's family physician since 2007
and has treated her for migraines with medications, including
Maxalt, Reglan, Motrin, and Vicodin. Admin. R. 21, 86-87,
previous ALJ found no record of urgent care treatment for
migraine symptoms and no provider had observed Dirtier while
she experienced migraine symptoms; the evidence supporting a
migraine condition during the previous claim consisted
primarily of Dittler's subjective statements. Admin. R.
87. The previous ALJ found that Dittler's migraines were
not disabling at any time up to the date of the previous
decision, January 22, 2013. Admin. R. 86-87, 96. That
decision created a presumption of continuing nondisability
which Dittler must overcome by demonstrating a material
change in circumstances after that decision. Chavez v.
Bowen, 844 F.2d 691, 693 (9th Cir. 1988).
has not shown a material change in her migraine symptoms. As
in the previous claim, no provider has observed her
experiencing a migraine and she has not required urgent care
for migraine symptoms since the previous decision. She has
not reported an increase in the severity or frequency of her
migraine symptoms since the previous decision. Admin. R. 21,
398-399, 436, 470, 483. Indeed, in ...