United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
Donna Raelene B. brings this action for judicial review of
the Commissioner of Social Security's
(“Commissioner's”) decision denying her
application for Disability Insurance Benefits under the
Social Security Act (the “Act”). This Court has
jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c).
Both parties consent to jurisdiction by a U.S. Magistrate
Judge. For the reasons discussed below, the Court affirms the
applied for Disability Insurance Benefits on August 7, 2013,
alleging disability beginning September 7, 2012. Tr. 17. Her
claims were initially denied, and Plaintiff timely requested
and appeared for a hearing before Administrative Law Judge
(“ALJ”) Kelly Wilson on March 24, 2016.
Id. After the hearing, the ALJ received a
supplemental record consisting of the report from
consultative examiner John Ellison, M.D., interrogatory
responses of impartial vocational expert Leta Berkshire, and
additional medical records. Id. The ALJ denied
Plaintiff's application in a written decision dated
February 28, 2017. See Tr. 17-30. Plaintiff sought
review from the Appeals Council and submitted Plaintiff's
psychiatrist Dr. Stacy Caraballo's letter. Tr. 15. The
Appeals Council admitted Dr. Caraballo's letter but found
that the letter does not relate to the period at issue. Tr.
2. The Appeals Council denied review of the ALJ's
decision, rendering the ALJ's decision the final decision
of the Commissioner. Tr. 1-4. Plaintiff now seeks judicial
review of the decision.
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. 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, a court reviews the
administrative record as a whole, “weighing both the
evidence that supports and detracts from the ALJ's
conclusion.” Davis v. Heckler, 868 F.2d 323,
326 (9th Cir. 1989).
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. See 20 C.F.R. §§ 404.1520,
416.920. The initial burden of proof rests upon the claimant
to meet the first four steps. Id. If the claimant
satisfies her burden with respect to the first four steps,
the burden shifts to the Commissioner at step five.
Id.; see also Johnson v. Shalala, 60 F.3d
1428, 1432 (9th Cir. 1995). At step five, the Commissioner
must show that 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. 20 C.F.R. §§
404.1520(a)(4)(v) & 416.920(a)(4)(v). If the Commissioner
fails to meet this burden, then the claimant is disabled.
Id. If, however, the Commissioner proves that the
claimant is able to perform other work existing in
significant numbers in the national economy, the claimant is
not disabled. Id.; see also Bustamante v.
Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
present case, the ALJ found that Plaintiff was not disabled.
At step one, the ALJ found that Plaintiff has not engaged in
substantial gainful activity since the onset date of
September 7, 2012. Tr. 19. At step two, the ALJ found
Plaintiff had the following severe impairments:
“degenerative disc disease; osteopenia; plantar
fasciitis; depressive disorder; anxiety disorder; [and]
polysubstance abuse.” Tr. 20. At step three, the ALJ
found that Plaintiff did not have an impairment or
combination of impairments that met or equaled the
requirements of a listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (“Listings”). Tr. 20-21.
to step four, the ALJ determined that Plaintiff retained
residual functional capacity (“RFC”) that allowed
her to perform light work, “except [that] she can
frequently balance, stoop, and climb ramps/stairs; she can
occasionally kneel, crouch, and crawl; she cannot climb
ladders, ropes, or scaffolds; and she can perform simple and
detailed tasks, but would have difficulty performing more
complex tasks consistently.” Tr. 22.
four, the ALJ found that Plaintiff is capable of performing
past relevant work as a Receptionist and Waitress. Tr. 30.
seeks review by this Court contending that (1) the ALJ
improperly rejected Plaintiff's subjective complaints;
(2) the Appeals Council erred in receiving but failing to
consider the new evidence of Stacey Caraballo, Ph.D.'s
opinion; and (3) the ALJ improperly rejected the opinion of
consultative examiner John Ellison, M.D. Pl.'s Br. 7-20
(ECF No. 13).
Subjective Symptom Testimony
claimant has medically documented impairments that could
reasonably be expected to produce some degree of the symptoms
complained of, and the record contains no affirmative
evidence of malingering, “the ALJ can reject the
claimant's testimony about the severity of . . . symptoms
only by offering specific, clear and convincing reasons for
doing so.” Smolen v. Chater, 80 F.3d 1273,
1281 (9th Cir. 1996) (internal citation omitted). A general
assertion [that] the claimant is not credible is
insufficient; instead, the ALJ must “state which
… testimony is not credible and what evidence suggests
the complaints are not credible.” Dodrill v.
Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons
proffered must be “sufficiently specific to permit the
reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant's testimony.” Orteza v.
Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal
citation omitted). If the ALJ's finding regarding the
claimant's subjective symptom testimony is
“supported by substantial evidence in the record, [the
court] may not engage in second-guessing.” Thomas
v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal
Security Ruling (“SSR”) 16-3p provides that
“subjective symptom evaluation is not an examination of
an individual's character, ” and requires the ALJ
to consider all of the evidence in an individual's record
when evaluating the intensity and persistence of symptoms.
SSR 16-3p, available at 2016 WL 1119029 at *1-2. The
ALJ must examine “the entire case record, including the
objective medical evidence; an individual's statements
about the intensity, persistence, and limiting effects of
symptoms; statements and other information provided by
medical sources and other persons; and any other relevant
evidence in the individual's case record.”
Id. at *4.
provided the following reasons for discrediting
Plaintiff's subjective testimony: (1) treatment for
Plaintiff's physical impairments has been routine,
conservative and effective, and treatment for her mental
impairment is effective, Tr. 24-26; (2) after the onset date,
Plaintiff collected unemployment benefits, continued working
as a caregiver, and participated in vocational
rehabilitation, which suggest that she considered herself
able to work; Tr. 26; (3) Plaintiff engaged in activities
that are inconsistent with her complaints, Tr. 27; (4)
Plaintiff was inconsistent regarding her substance abuse,
Id.; and (5) the record reflects that Plaintiff
appeared highly motivated to obtain disability benefits, Tr.
argues that the ALJ merely summarized the medical evidence
but failed to identify what evidence undermined
Plaintiff's testimony. Pl.'s Br. 10 (ECF No. 14)
(citing Reddick v. Chater, 157 F.3d 715, 722 (9th
Cir. 1998) (“General findings are insufficient; rather,
the ALJ must identify what testimony is not credible and what
evidence undermines the claimant's complaints.”).
The Commissioner argues that the ALJ's reasons for
discounting Plaintiff's subjective testimony were clear
and convincing. Def.'s Br. 4-12 (ECF No. 20).
may discredit a claimant's pain testimony based on a
history of conservative treatment. Johnson v.
Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (finding
that the ALJ provided clear and convincing reasons to
properly decline to rely on the claimant's testimony and
noting that the doctor prescribed only “conservative
treatment” which suggested a lower level of both pain
and functional limitation). Furthermore, evidence of
effective treatment may support an ALJ's rejection of
symptom allegations. Warre v. Comm'r of Soc. Sec.
Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)
(“Impairments that can be controlled effectively with
medication are not disabling for the purpose of determining
eligibility for SSI benefits.”).
found that the record does not contain objective evidence
that supports a disabling degree of limitation for
Plaintiff's physical impairments. Tr. 24. Specifically,
the MRI imaging of the thoracic spine in November 2013 shows
only “minimal loss of the vertebral body height at
¶ 4, T6 and T7.” Tr. 628. “There are a few