United States District Court, D. Oregon, Portland Division
TATYANA K. Plaintiff,
NANCY A. BERRYHILL, in her capacity as Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
V. ACOSTA JUDGE
Tatyana K. seeks judicial review of the Commissioner
of Social Security's final decision denying her
application for a period of disability and disability
insurance benefits ("DIB") under Title II of the
Social Security Act, 42 U.S.C. §§ 401-403. This
Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court affirms the ALJ's
was born in 1952, was 61 years old on the alleged onset of
disability date, and was 64 years old on the date of the
hearing. Plaintiff has a college degree and has worked as an
economist. Plaintiff moved to the United States from
Kazakhstan approximately twenty years ago and has past
relevant work experience as a childcare specialist.
protectively filed her DIB application on February 13, 2014,
alleging disability beginning February 13, 2014 as a result
of insomnia; depression and anxiety; chronic pain in her
right hip, right knee, and low back; hypertension; carpal
tunnel; cataracts; and gastroesophageal reflux disease. The
claim was denied initially on August 21, 2014, and again upon
reconsideration on January 14, 2015. Plaintiff filed a
written request for a hearing on March 16, 2015, which an
Administrative Law Judge ("ALJ") held on September
12, 2016 in Portland, Oregon. Plaintiff appeared and
testified at the hearing through a Russian language
interpreter and waived her right to legal representation.
Vocational Expert ("VE") Patricia B. Ayerza also
appeared and testified. The ALJ issued an unfavorable
decision, and the Appeals Council declined review. Plaintiff
filed this appeal.
district court must affirm the Commissioner's decision if
the Commissioner applied the proper legal standards and the
findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Brown-Hunter v. Colvin, 806
F.3d 487, 492 (9th Cir. 2015). "'Substantial
evidence is more than a mere scintilla but, less than a
preponderance. It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.'" Trevizo v. Berryhill, 871
F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v. Sec
'y Health & Human Servs., 846 F.2d 573, 576 (9th
Cir. 1988)). The court must weigh all the evidence, whether
it supports or detracts from the Commissioner's decision.
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.
1986). The Commissioner's decision must be upheld, even
if the evidence is susceptible to more than one rational
interpretation. Batson v. Commissioner Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the
evidence supports the Commissioner's conclusion, the
Commissioner must be affirmed; "the court may not
substitute its judgment for that of the Commissioner."
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001); Garrison v. Colvin, 759 F.3d 995, 1010 (9th
Commissioner has established a five-step sequential process
for determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
404.1520. Each step is potentially dispositive. The claimant
bears the burden of proof at steps one through four.
Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012); Valentine v. Commissioner Soc. Sec. Admin.,
574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden
shifts to the Commissioner to show that the claimant can do
other work which exists in the national economy. Hill v.
Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
found Plaintiff met the Social Security Act's insured
status requirements through December 31, 2017. At step one,
the ALJ determined Plaintiff has not engaged in substantial
gainful activity since February 13, 2014, the alleged onset
date. At step two, the ALJ found Plaintiff is impaired by the
single severe impairment of obesity which more than minimally
affects her ability to perform basic work activities. At step
three, the ALJ found Plaintiffs obesity causes only transient
and mild symptoms and limitations and does not meet or
medically equal a listed impairment. The ALJ assessed
Plaintiff with a Residual Functional Capacity
("RFC") to perform the full range of medium work as
defined in 20 C.F.R. § 404.1567(c). Tr. 30. At step
four, the ALJ found Plaintiff capable of performing her past
relevant work as a childcare specialist. Accordingly, the ALJ
concluded Plaintiff is not disabled.
contends the ALJ committed the following errors: (1) the ALJ
failed to find her insomnia severe at step two; (2) the ALJ
improperly rejected her testimony; (3) the ALJ improperly
rejected the opinion of the examining psychologist Donna C.
Wicher, Ph.D.; (4) Plaintiff did not knowingly waive her
right to representation; (5) the ALJ failed to order a
physical consultative examination; and (6) the ALJ improperly
rejected the lay testimony of her husband. The Commissioner
contends the ALJ's decision is supported by substantial
evidence and is free of legal error. Alternatively, the
Commissioner argues that even if ALJ erred, Plaintiff has not
demonstrated harmful error.
The ALJ Did Not Err at Step Two
two, a claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairments or combination of impairments. Webb v.
Barnhart, 433 F.3d683, 686-87 (9th Cir. 2005); 20 C.F.R.
§ 404.1520(a)(4)(ii). A severe impairment
"significantly limits" a claimant's
"physical or mental ability to do basic work
activities." 20 C.F.R. §§ 404. 1521(a), (b);
Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir.
2005). The ability to do basic work activities is defined as
"the abilities and aptitudes necessary to do most
jobs." 20 C.F.R. §§ 404. 1521(a), (b). Step
two is a "de minimus screening device used to
dispose of groundless claims." Webb, 433 F.3d
argues that the ALJ erred in failing to find her insomnia
severe at step two. Plaintiff insists that the ALJ erred
because the ALJ failed to account for her excessive daytime
sleepiness. Pl.'s Br. 7, ECF No. 17. However, as the ALJ
correctly determined, the medical record does not support
Plaintiffs allegations of excessive daytime sleepiness. Tr.
344. As the ALJ noted, Plaintiff does not experience
excessive drowsiness while driving, nor does she nap during
the day. Plaintiff has an Epworth Score of
zero. As the ALJ correctly indicated, Plaintiff
does not experience conditions such as sleep paralysis,
hypnagogic or hypnopompic hallucinations, or cataplexy. Tr.
26, 344. And, as the ALJ indicated, Plaintiff declined to
undergo cognitive behavioral therapy treatment recommended by
her physician and declined further workup on the condition
for years despite her contrary allegations of ongoing
insomnia. Tr. 26. The ALJ's findings are wholly supported
by substantial evidence. Because the record shows Plaintiff
does not experience excessive daytime sleepiness, the could
reasonably conclude that Plaintiffs chronic insomnia caused
no more than minimal limitations in Plaintiffs ability to
perform basic mental work activities, and therefore was
nonsevere. Tr. 26.
as noted above, the ALJ found that Plaintiffs obesity was
severe at step two, and continued with the sequential
evaluation through step four. Thus, the ALJ resolved step two
in Plaintiffs favor. Therefore, even assuming
arguengo that the ALJ erred at step two, the error
is harmless. Burch v. Barnhart, 400 F.3d 676, 682
(9th Cir, 2005); see also Gray v. Comm'r Soc. Sec.
Admin., 365 Fed.Appx. 60, 61 (9th Cir. 2010) (rejecting
argument that the ALJ erred at step two by determining
certain impairments were nonsevere, because any alleged error
was harmless since "the ALJ concluded that
[claimant's] other medical problems were severe
impairments"); Mondragon v. Astrue, 364
Fed.Appx. 346, 348 (9th Cir. 2010) ("Any alleged error
at step two was harmless because step two was decided in
[claimant]'s favor with regard to other ailments.").
And, to the extent that Plaintiff contends the ALJ erred in
failing to account for Plaintiffs insomnia in the RFC, the
argument fails. Plaintiff has not identified any functional
limitations caused by insomnia and supported by substantial
evidence in the medical record that the ALJ was required to
include in the RFC. Accordingly, the court concludes the
ALJ's finding that Plaintiffs insomnia nonsevere is
supported by substantial evidence and reasonable inferences
drawn from the record; the ALJ's decision will not be
The ALJ Did Not Err in Discounting Plaintiffs Subjective
contends the ALJ failed to provide clear and convincing
reasons for rejecting her subjective symptom testimony. To
determine whether a claimant's testimony regarding
subjective pain or symptoms is credible, an ALJ must perform
two stages of analysis. Trevizo, 871 F.3d at 678; 20
C.F.R. § 404.1529. The first stage is a threshold test
in which the claimant must produce objective medical evidence
of an underlying impairment that could reasonably be expected
to produce the symptoms alleged. Molina, 674 F.3d at
1112; Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th
Cir. 2008). At the second stage, absent affirmative evidence
that the claimant is malingering, the ALJ must provide clear
and convincing reasons for discrediting the claimant's
testimony regarding the severity of the symptoms.
Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d
1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue,
504 F.3d 1028, 1036 (9th Cir. 2007).
must make findings that are sufficiently specific to permit
the reviewing court to conclude that the ALJ did not
arbitrarily discredit the claimant's testimony.
Brown-Hunter, 8 06 F.3d at 493. Factors the ALJ may
consider when making such credibility determinations include
the objective medical evidence, the claimant's treatment
history, the claimant's daily activities, and
inconsistencies in testimony. Ghanim v. Colvin, 763
F.3d 1154, 1163 (9th Cir. 2013); Tommasetti, 533F.3d
hearing, Plaintiff testified that she lives with her husband
in a two-story house, and that she attended college and
worked as an economist. Tr. 44. Plaintiff testified that
after moving to the United States, she taught herself
English, and can read, write, and speak some English, but
prefers to use an interpreter. Tr. 45. Plaintiff stated that
she currently works as a child care specialist for eight
hours a week. Tr. 46. Plaintiff testified that she worked for
16 years as a child care specialist for children born to drug
addicted parents. Tr. 47. Plaintiff stated that she can no
longer perform that work because it was very difficult; the
children all have special needs, and the work made her
anxious and depressed, interfered with her sleep, and
negatively impacted her health. Tr. 45-46, 54.
estimated that she can walk for ten minutes before needing
rest, and can sit for 20 to 30 minutes. Tr. 48. Plaintiff
described that she speaks to her daughter almost daily on the
telephone, can drive independently, can do laundry, shops
with her husband, but does not vacuum. Tr. 50. Plaintiff
noted she loves to cook, but it is sometimes hard. Tr. 50.
May 26, 2014 Function Report, Plaintiff indicated that she
has chronic insomnia; irritability; anxiety; has pain in her
hip, knee, and shoulder; fatigue; high blood pressure; hot
flashes; depression; poor vision; stomach problems; and
numbness in her hands. Tr. 181, 186. Plaintiff described that
in a typical day, she has difficulty waking because she
sleeps poorly, then cooks, cleans the house a bit, buys
groceries, watches television, then goes to bed. Tr. 182.
Plaintiff reported no problems with personal care and that
she is able to cook complete meals. Tr. 183. Plaintiff noted
she is able to do laundry and household chores for only one
hour each week. Tr. 184. Plaintiff provided that her
impairments affect her ability lift, squat, bend, stand,
reach, walk, sit, kneel, climb stairs, concentrate, and use
her hands. Tr. 186. Plaintiff noted that she has difficulty
paying attention, does not handle stress well, and ...