United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
Kalawati C. 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).
reasons discussed below, the Court should affirm the
protectively filed an application for Disability Insurance
Benefits on October 6, 2014, and an application for Disabled
Widow's Benefits on December 10, 2014. Tr. 47. Plaintiff
alleges disability beginning August 31, 2014
(“AOD”). Id. Her applications were both
denied, and Plaintiff timely requested and appeared for a
hearing before Administrative Law Judge (“ALJ”)
John Michaelsen on November 16, 2016. Id.; Tr.
67-79. Plaintiff testified through a Hindi interpreter. Tr.
47, 67. The ALJ denied Plaintiff's applications in a
written decision dated December 16, 2016. Tr. 47-59.
Plaintiff sought review from the Appeals Council. 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
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 application date of
August 31, 2014. Tr. 50. At step two, the ALJ found Plaintiff
had the following severe impairments: bilateral
epicondylitis, adhesive capsulitis, and degenerative joint
disease of the shoulders. Id. 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 impairment in 20 CFR Part 404,
Subpart P, Appendix 1 (“Listings”). Tr. 52.
to step four, the ALJ determined that Plaintiff retained
residual functional capacity (“RFC”) to perform
light work with the following exceptions: “She can no
more than frequently bilaterally reach in all directions. She
also can no more than frequently push or pull no more than 20
pounds.” Tr. 53.
four, the ALJ found that Plaintiff is capable of performing
past relevant work as a housekeeper, which does not require
the performance of work-related activities precluded by
Plaintiff's RFC. Tr. 59.
issues before the Court are (1) whether the ALJ's
discrediting of Plaintiff's subjective complaints is
supported by substantial evidence and (2) whether the ALJ
erred in rejecting the medical opinions of consultative
examining physician Dr. Engelhardt and primary physician Dr.
Sprague. Pl.'s Br. 6, 16-17 (ECF No. 19); Def.'s Br.
1 (ECF No. 26).
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.
the ALJ found severe impairments of bilateral epicondylitis,
adhesive capsulitis and degenerative joint disease of the
shoulders. Tr. 50. Although Plaintiff also complained of
joint pain generally and pain in her back, hands, elbows,
wrists, knees, neck, shoulders, thighs, soles and shins at
various times, the ALJ found that there are no diagnoses for
the musculoskeletal complaints other than the severe
impairments of bilateral epicondylitis, adhesive capsulitis
and degenerative joint disease of the shoulders. Tr. 50, 336,
348, 372, 380, 399, 449, 433, 452, 509.
found that Plaintiff's “medically determinable
impairments could reasonably be expected to cause the alleged
symptoms.” Tr. 50, 53. He cited the MRI scans of
Plaintiff's left and right shoulders. Tr. 54. The MRI
scan of Plaintiff's left shoulder shows
“[d]egenerative changes acromioclavicular joint with
associated findings of edema/fluid involving the joint and
adjacent soft tissues[, ]” and “[l]ocalized
signal changes of tendinosis and possible non retracted tear
involving the supraspinatus tendon near its humeral
insertion.” Tr. 407. The MRI scan of Plaintiff's
right shoulder shows “[d]egenerative changes
acromioclavicular joint and inferior spurring of the acromium
which could be associated with some element of chronic
impingement[, ]” “probably tendinosis and
possible partial tear involving the supraspinatus tendon[,
]” and “[m]ild shoulder joint effusion and
evidence of some fluid within the subdeltoid bursa.”
the ALJ discredited Plaintiff's statements concerning the
intensity, persistence and limiting effects of
Plaintiff's shoulder symptoms because: (1) Plaintiff was
inconsistent in reporting the history and location of her
pain complaints, Id.; (2) there are significant
inconsistencies between Plaintiff's subjective complaints
and the minimal objective medical findings including little
and conservative treatment, Tr. 53-54; (3) there are
inconsistencies as to the reason why Plaintiff stopped
working, Tr. 56; and (4) ...