Alo v. Commissioner Social Security Administration
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 05/08/2017 by Judge Anna J. Brown. See attached 17 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHERYL L. ALO,
OPINION AND ORDER
NANCY A. BERRYHILL,1
Acting Commissioner, Social
MARK A. MANNING
Harder Wells Baron & Manning
474 Willamette Street
Eugene, OR 97401
Attorneys for Plaintiff
On January 23, 2017, Nancy A. Berryhill was appointed
Acting Commissioner of Social Security and pursuant to Federal
Rule of Civil Procedure 25(d) is substituted as Defendant in this
1 - OPINION AND ORDER
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
Regional Chief Counsel
MARTHA A. BODEN
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/A 221A
Seattle, WA 98104
Attorneys for Defendant
Plaintiff Cheryl L. Alo seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's applications
for Supplemental Security Income (SSI) and Disability Insurance
Benefits (DIB) under Titles XVI and II of the Social Security
This Court has jurisdiction to review the Commissioner's
final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.
Plaintiff filed her applications for DIB and SSI on
2 - OPINION AND ORDER
March 5, 2012.
Tr. 149, 156.2
onset date of July 31, 2008.
Plaintiff alleged a disability
Her applications were denied
initially and on reconsideration.
An Administrative Law Judge
(ALJ) held a hearing on January 21, 2014.
hearing Plaintiff was represented by an attorney.
a vocational expert (VE) testified at the hearing.
The ALJ issued a decision on April 15, 2014, in which she
found Plaintiff is not disabled and, therefore, is not entitled
Pursuant to 20 C.F.R. § 404.984(d) that
decision became the final decision of the Commissioner on
December 7, 2015, when the Appeals Council denied Plaintiff's
request for review.
See Sims v. Apfel, 530 U.S. 103,
Plaintiff was born on January 3, 1986, and was 28 years old
at the time of the hearing.
Plaintiff graduated from
Plaintiff has past relevant work
experience as a deli worker and produce clerk.
Plaintiff alleges disability due to lymphedema in her lower
Except when noted, Plaintiff does not challenge the ALJ’s
Citations to the official transcript of record filed by
the Commissioner on July 12, 2016, are referred to as "Tr."
3 - OPINION AND ORDER
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
See Tr. 21, 23-24.
The initial burden of proof rests on the claimant to
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate her
inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months."
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).
See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
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Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
It is more than a mere scintilla [of evidence]
but less than a preponderance.
Id. (citing Valentine, 574 F.3d
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I).
also Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.
5 - OPINION AND ORDER
At Step Two the claimant is not disabled if the
Commissioner determines the claimant does not have any medically
severe impairments or combination of impairments.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
See also Keyser, 648
F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
F.3d at 724.
See also Keyser, 648
The criteria for the listed impairments, known as
Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§§ 404.1520(e), 416.920(e).
See also Social Security Ruling
“A 'regular and continuing basis' means 8 hours a
day, for 5 days a week, or an equivalent schedule."
In other words, the Social Security Act does not require
complete incapacity to be disabled.
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Taylor v. Comm’r of Soc.
Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
20 C.F.R. §§ 404.1520(a)(4)(iv),
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. §§ 404.1520(a)(4)(v),
See also Keyser, 648 F.3d at 724-25.
burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.
Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
The Commissioner may satisfy this burden through the
testimony of a VE or by reference to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.
If the Commissioner meets this burden,
the claimant is not disabled.
20 C.F.R. §§ 404.1520(g)(1),
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since her July 31, 2008, alleged
7 - OPINION AND ORDER
At Step Two the ALJ found Plaintiff has the severe
impairments of morbid obesity and lymphedema.
found Plaintiff’s impairments of plantar fasciitis and
hypertension are nonsevere.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P, appendix
The ALJ found Plaintiff has the RFC to perform “a
range of light work.”
The ALJ found Plaintiff is able
to lift and/or to carry ten pounds frequently and “up to twenty
pounds” occasionally, to stand and/or to walk two hours in an
eight-hour work day, and to sit for six hours in an eight-hour
The ALJ found Plaintiff “requires the
opportunity to sit or stand at will while still performing
essential tasks . . . [and] to elevate her legs during the usual
breaks that occur in the work place at intervals of 10 to 15
minutes every two hours and 30 to 60 minutes at the lunch break.”
The ALJ also found Plaintiff can climb ramps and stairs,
stoop, crouch, crawl, and kneel occasionally but should never
climb ladders, ropes, or scaffolds.
At Step Four the ALJ concluded Plaintiff could not perform
her past relevant work.
At Step Five the ALJ concluded Plaintiff could perform jobs
that exist in significant numbers in the national economy.
8 - OPINION AND ORDER
Accordingly, the ALJ found Plaintiff is not disabled.
Plaintiff contends the ALJ erred when she (1) partially
rejected Plaintiff’s testimony; (2) gave “little weight” to the
Third Party Statement of Plaintiff’s aunt, Sherri Hopkins;
(3) failed to address the November 2013 statement of Physician’s
Assistant (PA) Tamara Tuttle; and (4) failed to include all of
Plaintiff’s limitations in her hypothetical to the VE.
The ALJ did not err when she partially rejected Plaintiff’s
Plaintiff alleges the ALJ erred when she failed to provide
clear and convincing reasons for partially rejecting Plaintiff's
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
The claimant must produce objective medical evidence
of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cotton, 799 F.2d 1403 (9th Cir.
1986), aff'd in Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.
The claimant, however, need not produce objective medical
evidence of the actual symptoms or their severity.
F.3d at 1284.
9 - OPINION AND ORDER
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if she provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th
General assertions that the claimant's testimony is
not credible are insufficient.
The ALJ must identify "what
testimony is not credible and what evidence undermines the
Id. (quoting Lester, 81 F.3d at 834).
Plaintiff testified at the hearing that she was unable to
work due to the swelling in her legs caused by the lymphedema.
Plaintiff noted she left her last job because it was
painful for her to stand and to walk for eight hours even with a
break every two hours.
Plaintiff testified she wears
compression stockings during the day when she is up and around
and gives herself a lymphatic massage once a day, but she still
has pain and swelling in her legs.
Plaintiff noted she elevates
her legs every two-to-three hours for thirty minutes at a time to
relieve the pain and swelling.
Plaintiff stated she has
had swelling in her legs since she was 16 years old, but it has
been getting worse over time.
Plaintiff noted she did not
elevate her legs for thirty minutes every two-to-three hours in
the past when she was working, but she had to elevate her legs
when she got home from work.
10- OPINION AND ORDER
“[S]ince not working[,
however, she’s] been doing it more.”
explained her husband works from home and is able to watch their
two young children when she has to elevate her legs.
The ALJ found Plaintiff’s “medically determinable
impairments could reasonably be expected to cause some of the
alleged symptoms,” but the ALJ did “not find all of [Plaintiff’s]
symptom allegations to be credible.”
The ALJ noted
there is objective evidence in the record that Plaintiff has
“extensive edema in her feet and ankles bilaterally,” but
Plaintiff does not appear to be as limited as she alleges.
Specifically, the ALJ noted in August 2011 Plaintiff had normal
range of motion, no joint swelling, and adequate and equal muscle
In August 2011 Plaintiff asked treating
physician Ryan Tran, M.D., for a handicap parking placard and
“disability from work.”
Dr. Tran approved Plaintiff
for the handicap placard, but he did not provide Plaintiff with a
statement of disability from work.
The ALJ also noted Plaintiff was examined in September 2013
by Raymond Nolan, M.D., who noted Plaintiff has “marked
lymphedema involving both legs” and feet.
had normal tandem gait, negative Romberg, and normal lowerextremity strength.
Dr. Nolan opined Plaintiff can sit for
“greater than six hours in an eight hour day” and stand and/or
walk for at least four hours in an eight-hour work day, but she
11- OPINION AND ORDER
is limited in her ability to squat or to kneel.
The ALJ also noted although Plaintiff testified she must
elevate her legs for thirty minutes every two to three hours,
there is not any indication in the record that Plaintiff was
directed to do so by any treating doctor and Plaintiff did not
report doing so to any medical professional before November 2013,
which is after she first applied for disability benefits.
Nevertheless, the ALJ included in her evaluation of Plaintiff’s
RFC that Plaintiff should be allowed to elevate her legs.
Finally, the ALJ noted Plaintiff cares for two children
under the age of five, completes household chores, drives her
children to school, and drives herself to appointments.
On this record the Court finds the ALJ did not err when she
partially rejected Plaintiff's testimony because the ALJ provided
clear and convincing reasons supported by substantial evidence in
the record for doing so.
The ALJ did not err when she gave little weight to the Third
Party Adult Function Report of Plaintiff’s aunt, Sherri
Plaintiff alleges the ALJ erred when she failed to provide
reasons for giving only little weight to Hopkins’s Third Party
Adult Function Report.
Lay testimony regarding a claimant's symptoms is competent
evidence that the ALJ must consider unless she "expressly
determines to disregard such testimony and gives reasons germane
12- OPINION AND ORDER
to each witness for doing so."
(9th Cir. 2001).
Lewis v. Apfel, 236 F.3d 503, 511
See also Merrill ex rel. Merrill v. Apfel, 224
F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a
claimant's disability, must give full consideration to the
testimony of friends and family members.").
The ALJ's reasons
for rejecting lay-witness testimony must also be "specific."
Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006).
ALJ's error lies in a failure to properly discuss competent lay
testimony favorable to the claimant, a reviewing court cannot
consider the error harmless unless it can confidently conclude
that no reasonable ALJ, when fully crediting the testimony, could
have reached a different disability determination."
F.3d at 1056.
On April 8, 2012, Hopkins provided a Third Party Adult
Function Report in which she states Plaintiff cannot work because
she cannot be on her feet “for very long” due to the fact that
her legs are filled with fluid and they hurt.
reports Plaintiff cannot wear pants, socks, or shoes because they
hurt her legs and feet.
Hopkins notes Plaintiff cannot
stand for long and, therefore, has trouble preparing meals, doing
yard work, shopping for more than 15 minutes at a time, and
getting down on the floor to play with her children.
Hopkins reports Plaintiff cannot stand for more than 20 minutes
without pain in her legs and cannot walk for more than four or
13- OPINION AND ORDER
five minutes before she needs to rest for 15 to 20 minutes.
Hopkins notes Plaintiff has had difficulty walking and
standing “for years,” but her condition has become worse in “the
past few years.”
The ALJ gave Hopkins’s Report little weight on the ground
that Hopkins ascribed limitations to Plaintiff that were greater
than those described by Plaintiff herself.
For example, Hopkins
stated Plaintiff could stand for only 20 minutes without pain,
but Plaintiff testified she can stand for two-to-three hours.
Similarly, Plaintiff reported she cooks meals, but Hopkins stated
Plaintiff tries to make one meal per week and Hopkins usually
finishes making the one meal because Plaintiff’s legs hurt.
On this record the Court finds the ALJ did not err when she
gave little weight to Hopkins’s Report because the ALJ provided
reasons germane to Hopkins and supported by substantial evidence
in the record for doing so.
III. The ALJ did not err when she did not address PA Tuttle’s
November 2013 statement.
Plaintiff alleges the ALJ erred when she did not address
PA Tuttle’s November 2013 statement that Plaintiff “will need to
find work in which she can elevate her legs frequently throughout
Medical sources are divided into two categories:
"acceptable" and "not acceptable."
14- OPINION AND ORDER
20 C.F.R. § 416.902.
Acceptable medical sources include licensed physicians and
20 C.F.R. § 416.902.
Medical sources classified
as "not acceptable" include, but are not limited to, physicians’
SSR 06-03p, at *2.
The ALJ may assign a not-
acceptable medical source either greater or lesser weight than
that of an acceptable medical source.
SSR 06-03p, at *5-6.
ALJ, however, must explain the weight assigned to such sources to
the extent that a claimant or subsequent reviewer may follow the
SSR 06-03p, at *6.
PA Tuttle examined Plaintiff on November 26, 2013.
Plaintiff reported the swelling in her legs was “continuous” and
that she needs to “elevate every few hours for about 30 minutes
to keep it under control.”
PA Tuttle directed
Plaintiff to wear compression stockings and to elevate her legs
The ALJ did not specifically comment on PA Tuttle’s
statement that Plaintiff would need to find work in which she can
elevate her legs frequently throughout the day.
Defendant concedes the ALJ did not expressly address PA Tuttle’s
statement, Defendant asserts the omission was harmless because
the ALJ incorporated in her assessment of Plaintiff’s RFC that
Plaintiff should be allowed to elevate her legs throughout the
See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th
Cir. 2008)(An ALJ’s error is harmless when it is clear from the
15- OPINION AND ORDER
record that the ALJ’s error was inconsequential to the ultimate
Specifically, the ALJ’s assessment
of Plaintiff’s RFC required Plaintiff to be allowed to elevate
her legs for ten-to-fifteen minutes every two hours and 30-60
minutes at the lunch break.
The Court agrees the ALJ’s
hypothetical sufficiently encompassed PA Tuttle’s statement that
Plaintiff “will need to find work in which she can elevate her
legs frequently throughout the day.”
Accordingly, the Court concludes the ALJ did not err when
she failed to address PA Tuttle’s statement, and, in any event,
any such error was harmless.
The ALJ did not err at Step Five.
Plaintiff asserts the ALJ erred at Step Five when she failed
to include all of the limitations identified by Plaintiff,
Hopkins, and PA Tuttle in her hypothetical to the VE.
The Court has already concluded the ALJ did not err when she
rejected the limitations asserted by Plaintiff, Hopkins, and PA
On this record, therefore, the Court also concludes the
ALJ did not err at Step Five when she failed to include those
limitations in her hypothetical to the VE.
For these reasons, the Court AFFIRMS the decision of the
16- OPINION AND ORDER
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 8th day of May, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
17- OPINION AND ORDER
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