United States District Court, D. Oregon
OPINION AND ORDER
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE.
Rema R. brings this action for judicial review of the
Commissioner of Social Security's
(“Commissioner”) decision denying her
applications for Disability Insurance and Supplemental
Security Income benefits. This Court has jurisdiction under
42 U.S.C. §§ 405(g) and 1383(c)(3).
1, 2014 Plaintiff filed an applications for Disability
Insurance and Supplemental Security Income benefits, alleging
disability as of September 1, 2006. Tr. 185-191,
192-197.Plaintiff was denied initially upon
application and upon reconsideration. Tr. 141-145, 146-149.
Upon Plaintiff's request a hearing was held and on
December 22, 2016, an Administrative Law Judge
(“ALJ”) determined that Plaintiff was not
disabled and denied her claim. Tr. 17-38. The Appeals Council
denied the request for review, making the ALJ's decision
the final decision of the Commissioner. Tr. 1-6. This appeal
now contends that the ALJ erred: (1) in failing to provide a
legally sufficient reason to discount the opinion of treating
physician Dr. Kemerling; (2) in rejecting Plaintiff's
subjective symptom testimony; and (3) in failing to include
all of Plaintiff's supported functional limitations in
the residual functional capacity (“RFC”)
assessment. Because the Commissioner's decision is based
on proper legal standards and supported by substantial
evidence, the Commissioner's decision is AFFIRMED.
reviewing court shall affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence on the record. 42 U.S.C.
§ 405(g); Batson v. Comm'r for Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence is ‘more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Hill v. Astrue,
698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v.
Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine
whether substantial evidence exists, this court reviews the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion. Martinez v. Heckler, 807 F.2d 771, 772
(9th Cir. 1986).
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520; 416.920. If the
claimant satisfied her burden with respect to the first four
steps, the burden then shifts to the Commissioner with regard
to step five. 20 C.F.R. § 404.1520. At step five, the
Commissioner's burden is to demonstrate the claimant is
capable of making an adjustment to other work after
considering the claimant's Residual Functional Capacity
(“RFC”), age, education, and work experience.
present case, the ALJ found that Plaintiff was not disabled.
At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since September 1, 2006. Tr. 22.
A step two, the ALJ found that Plaintiff had the following
severe impairments: posttraumatic stress disorder/anxiety,
depression, fibromyalgia, irritable bowel syndrome, Bells
palsy, and obesity. Id. At step three, the ALJ found
that Plaintiff's impairments or combination of
impairments did not meet or medically equal the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1. Tr. 22-25.
to step four, the ALJ determined that Plaintiff's RFC
allows her to perform less than a full range of light work as
defined in 20 C.F.R. 404.1567(b) and 416.967(b). She can lift
and carry 20 pounds occasionally and 10 pounds frequently.
She can sit, stand, and walk about six hours each in an
eight-hour workday. She can do simple, routine work with
occasional contact with supervisors, superficial contact with
coworkers with no teamwork or collaboration, and no public
contact. Tr. 25. At step four, the ALJ found Plaintiff has no
past relevant work (Tr. 31) but at step five, determined
based on the assessed RFC she could perform jobs existing in
significant numbers in the national economy, specifically the
representative occupations laundry worker, DOT#302.685-010,
and photocopy machines operator, DOT#207.685-014. Tr. 32. As
a result the ALJ concluded that Plaintiff was “not
disabled” for purposes of the Social Security Act and
therefore did not qualify for benefits. Tr. 32.
challenges the ALJ's non-disability determination on
three grounds. First, Plaintiff argues that the ALJ failed to
provide legally sufficient reasons to discount the opinion of
Dr. Kemerling. Second, the ALJ erred in rejecting
Plaintiff's subjective symptom testimony. And third, the
ALJ erred in failing to include all of Plaintiff's
supported functional limitations in the RFC.
Dr. Kemerling's opinion
first challenges the ALJ's decision to give Dr.
Kemerling's opinion little weight. Pl.'s Br. 5. The
ALJ found that Dr. Kemerling's opinion was not
well-supported by substantial evidence and appeared to be
“based primarily on the claimant's self-report,
” which rendered it less persuasive. Tr. 30. Because
her opinion is contradicted by other medical opinions in the
record, the ALJ need only provide specific and legitimate
reasons, supported by substantial evidence, for rejecting her
opinion. Bayliss v. Barnhart, 427 F.3d 1211, 1216
(9th Cir. 2005). An ALJ may reject a psychological opinion
that is “not supported by clinical evidence” and
is based on a claimant's subjective complaint.
Id. at 1217.
the ALJ provided specific and legitimate reasons for giving
Dr. Kemerling's opinion little weight. While Dr.
Kemerling opined that Plaintiff “struggles with
depression and anxiety” that “appears to cause
severe impairments in her day-to-day functioning” (Tr.
1071), she offered no clinical findings to support her
conclusion. Rather than objectively assess how
Plaintiff's depression and anxiety affect her
functioning, Dr. Kemerling's measured Plaintiff's
progress primarily using Plaintiff's own self-reports.
See, e.g., Tr. 903, 905, 908, 911, 914, 917, 923,
926. At times Dr. Kemerling's treatment notes call into
question the validity of Plaintiff's self-reports
regarding her ...