United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. MCSHANE, UNITED STATES DISTRICT JUDGE
Barbara M. brings this action for judicial review of a final
decision of the Commissioner of Social Security
(“Commissioner”) denying her application for
disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Title
II of the Social Security Act. This Court has jurisdiction
under 42 U.S.C. §§ 405(g) and 1383(c)(3).
issues before this Court are whether: (1) the Administrative
Law Judge (“ALJ”) erred in finding
Plaintiff's right knee osteoarthritis was
“non-severe”; (2) the ALJ gave clear and
convincing reasons for rejecting Plaintiff's testimony;
(3) the ALJ erred in disregarding the lay witness'
testimony; and (4) the Commissioner met her burden of proving
that Plaintiff can perform “other work” in the
the ALJ articulated sufficient reasons supported by
substantial evidence in her evaluation of the respective
evidence and, to the extent that she erred, such errors were
harmless, the Commissioner's decision is AFFIRMED.
AND FACTUAL BACKGROUND
applied for DIB and SSI on April 29, 2014, alleging
disability since September 22, 2012. Tr. 168, 175. Both
claims were denied initially, tr. 107, and upon
reconsideration, tr. 118, 121. Plaintiff timely requested a
hearing before an ALJ, tr. 124, and appeared before the
Honorable Katherine Weatherly on February 12, 2016, Tr. 39.
ALJ Weatherly denied Plaintiff's claim by a written
decision dated April 8, 2016. Tr. 18. Plaintiff sought review
from the Appeals Council and was denied on May 31, 2017, tr.
1, rendering the ALJ's decision final. Plaintiff now
seeks judicial review of the ALJ's decision.
was 50 years old at the time of her alleged disability onset,
tr. 32, and 53 at the time of her hearing, see tr.
39. Plaintiff is a high school graduate and worked as a home
attendant, dishwasher, nurse's assistant, cashier, and
fast food worker. Tr. 59, 212. Plaintiff alleges disability
due to congestive heart failure, chronic obstructive
pulmonary disease, end-stage osteoarthritis in the right knee
with “bone-on-bone” degenerative changes, type II
diabetes mellitus, hypertension, obesity, and depressive
disorder. Pl.'s Am. Br. 1, ECF No. 15.
reviewing court shall affirm the Commissioner's decision
if the decision is based on proper legal standards and the
legal findings are supported by substantial evidence in the
record. See 42 U.S.C. § 405(g); Batson v.
Comm'r of 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, the
court reviews the administrative record as a whole, weighing
both the evidence that supports and that which detracts from
the ALJ's conclusion. Davis v. Heckler, 868 F.2d
323, 326 (9th Cir. 1989) (citing Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986)).
“‘If the evidence can reasonably support either
affirming or reversing,' the reviewing court ‘may
not substitute its judgment' for that of the
Commissioner.” Gutierrez v. Comm'r of Soc. Sec.
Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir.
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2012). The burden of proof rests on the
claimant for steps one through four, and on the Commissioner
for step five. Bustamante v. Massanari, 262 F.3d
949, 953-54 (9th Cir. 2001) (citing Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). At step
five, the Commissioner's burden is to demonstrate that
the claimant can make an adjustment to other work existing in
significant numbers in the national economy after considering
the claimant's residual functional capacity, age,
education, and work experience. 20 C.F.R. §
404.1520(a)(4)(v). If the Commissioner fails to meet
this burden, then the claimant is considered disabled.
Plaintiff's Right Knee Osteoarthritis
argues that the ALJ erred in finding that her right knee
osteoarthritis was non-severe. Pl.'s Am. Br. 11, ECF No.
15. Plaintiff points to Dr. Randall Jennings', M.D.,
February 2016 report, id.; see tr. 671, and
other records Plaintiff submitted to the Appeals Council
after the ALJ's decision, Pl.'s Am. Br. 12-14, ECF
No. 15; see Pl.'s Am. Br. Ex. A., 4-5, 41,
42-43, 44- 46.
severe impairment is an “impairment or combination of
impairments which significantly limits your physical or
mental ability to do basic work activities.” 20 C.F.R.
§§ 404.1520(c), 416.920(c). “An impairment is
not severe if it is merely a ‘slight abnormality (or
combination of slight abnormalities) that has no more than a
minimal effect on the ability to do basic work
activities.'” Webb v. Barnhart, 433 F.3d
683, 686 (9th Cir. 2005) (quoting Social Security Ruling
96-3p, 1996 WL 374181).
on the lack of objective medical evidence and Plaintiff's
activities of daily living, the ALJ found that the
Plaintiff's right knee complaints to be exaggerated. Tr.
24. Plaintiff told her counselor on August 18, 2015 that she
had a long history of right knee pain, may require another
surgery, and occasionally needed to use a walker. Tr. 663. On
February 12, 2016, Plaintiff testified that she
“normally use[s]” a walker that Dr. Joshi
prescribed her. Tr. 49. Plaintiff testified that she usually
used it when she went to appointments and things outside of
her home, but not at home. Id. The medical record,
however, does not support Plaintiff's statements. As the
ALJ noted, Plaintiff never mentioned knee pain or surgery to
a medical provider until October 2015. Plaintiff was
prescribed a walker, but she did not use it as often as
asserted. For example, Plaintiff indicated on May 11, 2014
that she used only handicap carts at stores, not a walker or
any other aids. Tr. 239. Likewise, Plaintiff's
daughter-in-law indicated on June 23, 2014 that Plaintiff
used only handicap carts at stores and reading glasses, not a
walker or any other aids. Tr. 247. Although Dr. Sushan Joshi
prescribed Plaintiff a walker on July 3, 2014, tr. 555, he
explained that Plaintiff had been “walking around
fine” and had no shortness of breath, tr. 516. The
record does not show that Plaintiff attended her appointments
with a walker. See tr. 24. For example, in a report
from a visit on October 28, 2015, Dr. Joshi did not say that
Plaintiff used a walker. Tr. 589. In fact, Dr. Joshi said
that Plaintiff's gait and station was
“normal.” Id. These facts constitute
substantial evidence that Plaintiff's right knee
osteoarthritis is non-severe.
also noted that imaging in October 2015 and February 2016
showed only mild to moderate degenerative changes in
Plaintiff's right knee with no acute abnormalities. Tr.
24; see tr. 639, 670. Yet Plaintiff alleged on
February 19, 2016 that her knee pain interfered with her
daily activities and prevented her from walking more than one
block. Tr. 24; see tr. 667; see also tr. 50
(testifying that she could only walk for half a block before
she had to stop due to shortness of breath). To the contrary,
a physical examination that same day revealed some tenderness
but normal strength and range of motion. Tr. 24; see
tr. 669. Likewise, an ...