United States District Court, D. Oregon, Portland Division
Lori L. K.,  Plaintiff,
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.
OPINION AND ORDER
Aiken United States District Judge
("Plaintiff”) brings this action pursuant to the
Social Security Act ("Act"), 42 U.S.C. §
405(g), to obtain judicial review of a final decision of the
Commissioner of Social Security ("Commissioner").
The Commissioner denied plaintiffs application for Disability
Insurance Benefits ("DIB") on February 27, 2018.
For the reasons that follow, the decision of the Commissioner
November 20, 2014, Plaintiff filed for DIB, alleging
disability beginning on Marcb 26, 2014. The claim was denied
initially on March 23, 2015, and upon reconsideration on May
29, 2015. Following denials at the initial and
reconsideration levels, Plaintiff filed a written request for
a hearing on June 9, 2015. An administrative law judge
("ALJ") held a hearing on November 18, 2016.
Plaintiff was represented by counsel at the hearing, and she
and a vocational expert ("VE") offered testimony.
The ALJ found Plaintiff not disabled in a written decision
issued on February 28, 2017. Plaintiff requested a review of
the ALJ's decision from the Appeals Council
("AC") and submitted new evidence for its
consideration. On February 15, 2018, the AC denied review of
the ALJ's decision and declined to consider and admit
Plaintiffs new evidence. Following that denial, Plaintiff
filed the present complaint in this Court.
U.S.C. § 405(g) provides for judicial review of the
Social Security Administration's disability
determinations: "The court shall have power to enter
...a judgment affirming, modifying, or reversing the decision
of the Commissioner of Social Security, with or without
remanding the cause for a rehearing." In reviewing the
ALJ's findings, district courts act in an appellate
capacity, not as the trier of fact. Fair v, Bowen,
885 F.2d 597, 604 (9th Cir. 1989). The district court must
affirm the ALJ's decision unless it contains legal error
or is not supported by substantial evidence."
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
2014) (citing Stout v. Comm'r, Soc. Sec. Admin.,
454 F.3d 1050, 1052 (9th Cir. 2006)). Harmless legal errors
are not grounds for reversal. Stout v. Comm'r, Soc.
Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citing
Burch v. Bamhart, 400 F.3d 676, 679 (9th Cir.
2005)). "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." Gutierrez v. Comm'r of
Soc. Sec, 740 F.3d 519, 522 (9th Cir. 2014) (citation
and internal quotation marks omitted). The court must
evaluate the complete record and weigh "both the
evidence that supports and the evidence that detracts from
the ALJ's conclusion." Mayes v. Massanari,
276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject
to more than one interpretation, but the Commissioner's
decision is rational, the Commissioner must be affirmed,
because "the court may not substitute its judgment for
that of the Commissioner." Edlund v. Massanari,
253 F.3d 1152, 1156 (9th Cir. 2001).
initial burden of proof rests upon the plaintiff to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the plaintiff must
demonstrate an "inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to
last for a continuous period of not less than 12
months[.]" 42 U.S.C. § 423(d)(1)(A).
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(a)(4); id. § 416.920(a)(4). At step
one, the ALJ found that Plaintiff had not engaged in
"substantial gainful activity" since the alleged
onset date of March 26, 2014 through the date last insured.
Tr. 16. 20 C.F.R; §§ 404.1520(a)(4) (i), (b);
id. §§ 416.920(a)(4)(i), (b). At step two,
the ALJ found that plaintiff had severe impairments of
"obesity, diabetes mellitus with neuropathy,
sacroilitis, depression, and anxiety." Tr. 16. 20 C.F.R.
§§ 404.1520(a)(4)(h), (c); id.
§§ 416.920(a)(4)(ii). At step three, the ALJ
determined plaintiffs impairments, whether considered singly
or in combination, did not meet or equal "one of the
listed impairments" that the Commissioner acknowledges
are so severe as to preclude substantial gainful activity.
Tr. 17. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d);
id. §§ 416.920(a)(4)(in), (d).
then assessed plaintiffs residual functional capacity
("RFC"). 20 C.F.R. § 404.1520(e); id.
§ 416.920(e). The ALJ found that Plaintiff
has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except the claimant is limited
to no more than occasional climbing ladders, ropes, and
scaffolds. She needs to avoid concentrated exposure to
unprotected heights, moving machinery, and similar hazards.
She is limited to performing simple, repetitive, routine
tasks that require no more than occasional contact with
coworkers and the public.
Tr. 18. At step four, the ALJ found that Plaintiff was
"unable to perform any past relevant work." Tr. 28.
At step five, the ALJ found that there were "other jobs
existing in significant numbers in the national economy that
Plaintiff could perform, " including motel cleaner,
electronics worker, and price marker. Tr. 28-29. Accordingly,
the ALJ found that Plaintiff was not disabled under the Act.
raises five issues on appeal. Plaintiff contends that the
Commissioner erred in: (1) improperly evaluating plaintiffs
subjective symptom testimony, (2) improperly evaluating lay
witness statements; (3) improperly analyzing the medical
evidence; (4) improperly assessing Plaintiffs RFC; and (5)
not considering and reviewing the new evidence submitted to
the AC. The Court will address each issue in turn.
Subjective Symptom Testimony
argues that the ALJ improperly evaluated Plaintiffs
subjective symptom testimony. Plaintiff partially relies on
the additional medical records which were submitted to the AC
following the ALJ initial decision. As discussed below, the
Court finds that the supplemental evidence Plaintiff does not
provide any new or relevant information which would cause the
Court to find harmful error in the ALJ's decision.
Therefore, in this section, the Court examines Plaintiffs
additional arguments concerning the ALJ's evaluation of
Plaintiffs symptom testimony.
claimant's medically-documented impairments reasonably
could 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). A general assertion that the claimant is not
credible is insufficient; 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
discount the claimant's testimony, " Orteza v.
Shalala, 50 F.3d 748, 750 (9th Cir. 1995). If the
ALJ's credibility finding is specific, clear, and
convincing, and supported by substantial evidence in the
record, the court may not engage in second-guessing. See
Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
regulations describe a two-step process for evaluating
symptoms testimony. 20 C.F.R. §§ 404.1529(a) &
(c)(1); 416.929(a) & (c)(1). The ALJ must consider
whether there is an underlying medically determinable
physical or mental impairment that could reasonably be
expected to produce symptoms, including pain. Id.
Second, the ALJ must evaluate the intensity, persistence, and
limiting effects of the claimant's symptoms to determine
the extent to which they limit the claimant's functional
limitations. Id. For this purpose, whenever
statements about the intensity, persistence, or functionally
limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the undersigned
must consider other evidence in the record to determine if
the claimant's symptoms limit the ability to do
work-related activities. Id.
present case, the ALJ's findings regarding Plaintiffs
symptom testimony were specific, clear, and convincing as to
why he did not find Plaintiffs symptoms to be consistent with
the other evidence in the record. Tr. 19-22. In his decision,
the ALJ split the symptom analysis into two parts: mental
health and physical health.
Plaintiffs mental health-related symptoms, the ALJ found that
they "primarily show symptoms of anxiety that appear to
be in reaction to situational stressors, such as poor
finances or believing herself to be harassed by
supervisors." Tr. 22. The ALJ relied on evidence from
the medical record to reach this conclusion. Tr. 19-22. The
ALJ relied on the reports of Dr. Patricia Engle, MD,
Catherine Melo, MSW, Dr. Laurence Binder, MD, Sara Mueller,
MA, QMHP, Wendy Sell, BSW, and Dr. Robert Olsen, MD.
Id. The ALJ used these sources to cite specific
examples of inconsistencies between Plaintiffs testimony and
other evidence in the record. Id. For example, with
Dr. Engle's reports, the ALJ noted that in March of 2014,
two days after the alleged onset date, Plaintiff had
complained of "corrective feedback" and a
"work plan" at her job that aggravated her anxiety.
Tr. 19. At a follow-up with Dr. Engle in May of 2014,
Plaintiff reported sleeping better with a new medication, and
that her medication was being managed by a psychiatrist.
Id. Additionally, Plaintiff also described her work
conditions as "toxic" and said that her plan was to
leave her job. Id. In August of 2014, Plaintiff
reported more situational stressors to Dr. Engle, including
financial and family-related issues. Tr. 20. In both July and
August of 2014, Plaintiff reported to Dr. Engle that she was
"excited" about starting vocational rehabilitation.
Tr. 19-20. Dr. Engle wrote that she felt Plaintiff was
"clearly motivated to work." Tr. 20.
Binder, the ALJ noted that Plaintiff also complained of
stress and anxiety caused by work conditions and financial
problems. Tr. 19. The ALJ viewed Ms. Mueller's and Ms.
Sell's notes longitudinally and observed that Plaintiffs
anxiety fluctuated based off situational stressors but that
she experiencing success with using techniques she learned in
counseling. Tr. 20-21. Additionally, the ALJ noted that Ms.
Sell's notes reflected that Plaintiff could maintain
regular appointments and navigate various local social
service agencies, Tr. 21. Finally, the ALJ looked at the
notes of Dr. Olsen, who reported that Plaintiff was
conversing cordially with clinic staff before her
appointment, but that Plaintiffs demeanor changed
"drastically" at the start of the appointment.
Id. The ALJ also quoted Dr. Olson's objective
findings, which reported a fairly normal and calm demeanor
despite the Plaintiffs expressed panic and stress.
Id. Indeed, Dr. Olson noted that Plaintiff was
"very invested" in a PTSD diagnosis. Id.
The ALJ also described how, at Plaintiffs follow-ups with Dr.
Olson, Plaintiff displayed the same calm, alert, and oriented
behavior. Tr. 21-22.
cited to numerous sources within the record and notes
patterns within Plaintiffs history of seeking mental health
treatment. In sum, the ALJ relied on objective medical
evidence in the record, as well as on Plaintiffs work
history, on the pattern of situational stressors that
correlated with Plaintiffs anxiety, and on the evidence of
some improvement with treatments. Thus, based on this record,
the Court finds that the ALJ did not err in discrediting
Plaintiffs statements related to the intensity, persistence,
and limiting effects of her mental health symptoms.
Plaintiffs physical health-related symptoms, the ALJ found
that Plaintiffs treatment plan had been conservative and not
indicative of physical symptoms or limitations so severe as
to be disabling. Tr. 23. The ALJ relied on sources within the
record to cite to specific examples of inconsistencies
between Plaintiffs testimony and other evidence in the
record. Tr. 22-23. For example, Plaintiff underwent elective
laparoscopic gastric bypass surgery on July 2015 to address
her obesity and subsequent health complaints. Tr. 22-23. The
ALJ identified notes from Dr. Richard Hsu two months after
the surgery that stated Plaintiff was doing well and that her
blood sugars were doing better. Tr. 23. The ALJ reviewed
several other notes from Dr. Hsu that indicated overall that,
besides some sacral and lower lumbar tenderness, Plaintiffs
systems were running normally. Id. The ...